Robbins: What is the Insurrection Act?
The president is a font, if not exactly of “great and unmatched wisdom,” of, at the very least, nearly endless ideas for legal columns. Never in the nearly 25 years that I have been penning this column did it previously occur to me that the subject would one day be the heretofore obscure Insurrection Act of 1807.
But here we are.
On June 1, the president threatened to invoke the act which left most folks — lay people and legal scholars alike — scratching their heads. Say what?
Missing the forest for the trees
A little context first.
Unless your COVID-19 quarantine has been total, you likely know about the George Floyd killing in Minneapolis and the outrage and massive protests that it has spawned. I have come to call the current movement the Third Reconstruction; the first referring to the post-Civil War era, the second being the Civil Rights movement of the 1960s; and this, the third, where perhaps dignity and true equality, at last, will peak in its full flowering.
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Where many see a movement, however, the president sees only lawlessness, disorder, and a threat to his authority.
It would be dishonest not to acknowledge that there have indeed been opportunists and destruction. There have been those who would conscript the general weariness of our divided and the all-too-frequent disparate treatment of our fellow beings for their own purposes. There has been looting, mayhem, vandalism and arson. There have been anarchists and extremists, both left and right, and those with no agenda other than to disrupt or cache for themselves a bit of lucre. By my lights, at least, they are the minority. And that is unfortunate. Those persons are at the fringe and, like a tattered cloth, there are always loose, ungainly threads.
The president has missed the forest for the trees.
Is this legal?
That notwithstanding, by invoking the Insurrection Act, the president has exhumed it from its long slumber. What then is the Insurrection Act and can the president in fact deploy it?
What the president said, specifically, was this, “If a city or state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.”
Translated into an easily digestible bit, what the president was threatening was no less than to deploy military troops against the American people themselves. As a quick aside, that is neither the design nor is it the training of American troops. The military is intended to defend the American people from outside threats.
Signed into law by Thomas Jefferson, the original text of the act, which has been amended several times since it was first passed, provides the following:
“An Act authorizing the employment of the land and naval forces of the United States, in cases of insurrections.”
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.”
Before invoking the act, the president must first issue a proclamation ordering the insurgents to disperse within a specific period of time. If the situation does not resolve, the president may then issue an executive order to send in troops.
The last time the act was invoked was in 1992 when George H.W. Bush invoked it to quell the Los Angeles riots after the acquittal of four white police officers in the beating of Rodney King.
As to whether a state must request the presence of military forces in the state, that does not appear to necessarily be the case. Section 251 of the Act provides that, “[T]he President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia.”
But here’s the rub. The very next section, 252, says:
“Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.”
Note the “rebellion against the authority of the United States” provision of this section. Do a few random thugs and vandals amount to such a threat?
Can the president, in fact, call out the troops? All one can say in good conscience is “perhaps.”
Should he? Particularly considering the fallout from the president’s recent ham-handed photo-op before St. John’s, that may be another matter entirely.