President Trump Considers Invoking Insurrection Act to Quell Riots - Should the Military Be Called In to Help Local Authorities?

What’s the story?

• In recent days, President Donald Trump has warned that he will deploy the military to quell rioting in cities across the country as a last resort if the “righteous cries of peaceful protesters” continue to be “drowned out by an angry mob”.
• Numerous states have called up elements of their National Guard to restore order, as of Monday morning roughly 66,700 National Guard members had been activated according to the National Guard Bureau, although many were performing tasks related to the coronavirus (COVID-19) pandemic.
• Under the Constitution and statutes enacted by Congress, the president has the authority to deploy the military to stop insurrections and domestic violence.
• When used in this capacity, military units assist local law enforcement in keeping the peace, rather than conducting standard military operations. Several military units, including elements of the Army's Airborne divisions, are specially trained in riot control.

Where does the federal government get these powers?

• The Constitution vests states with the primary responsibility for ensuring civil order and the protection of citizens’ lives & property. But it also empowers the federal government to protect states and use the military to “suppress insurrections and repel invasion” (Article I, Section 8, Clause 15) ― and to stop “domestic violence” if requested by a state legislature or governor (Article IV, Section 4).
• To clarify these powers, Congress enacted the Insurrection Act of 1807, which empowers the president to use the military to suppress an insurrection at the request of a state, to enforce federal law, or to protect civil rights. 
• The Posse Comitatus Act of 1878 prohibits the use of the Army or Air Force (and because of executive orders, the Marine Corps & Navy as well) for law enforcement purposes unless authorized by the Constitution or an act of Congress. Because the Insurrection Act is an act of Congress, the president can invoke it to call out the military to quell unrest without the constraint of the Posse Comitatus Act.

What is the Insurrection Act?

• The Insurrection Act allows the president to use the military by deploying regular military units or federalizing National Guard units (which are normally under state control) to suppress insurrection or domestic violence.
• It requires that once the president invokes the authorities he issue a proclamation immediately that orders “insurgents to disperse and retire peaceably to their abodes within a limited time.”
• The Insurrection Act has been amended several times since its original enactment in 1807. For instance, an amendment enacted in 1877 after the Civil War during Reconstruction allows the Insurrection Act to be invoked to enforce civil rights laws. After Hurricane Katrina, its “domestic violence” section was amended to include restoring public order & enforce laws after a “natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition” ― but that language was later amended back to its original state.
• The modern version of the Insurrection Act includes several specific circumstances when it can be invoked, including at the request of a state to suppress domestic violence (Section 251); to enforce federal law during riots or civil disturbances (Section 252); or to suppress insurrections or domestic violence if local law enforcement is hindered & unable to protect individuals' civil rights (Section 253).

When has the Insurrection Act been invoked in modern times?

• 1943 - Detroit, Michigan: President Franklin D. Roosevelt sent federal troops to restore order following a race riot at the request of Michigan’s governor.
• 1957 - Little Rock, Arkansas: President Dwight D. Eisenhower deployed a battle group of the 101st Airborne Division & federalized the entire Arkansas National Guard (without the governor's permission) to enforce a federal court order that allowed nine black students to attend a previously white high school.
• 1962 - Oxford, Mississippi: President John F. Kennedy deployed federal marshals, federalized the Mississippi National Guard, and sent active Army troops to the University of Mississippi at Oxford (without the governor's permission) to enforce a court order allowing black student James Meredith to register at the school.
• 1963 - Alabama: President John F. Kennedy federalized Alabama National Guard troops in June to force the desegregation of the University of Alabama, and again in September to force the desegregation of public schools (both times without the governor's permission).
• 1965 - Alabama: President Lyndon B. Johnson federalized the Alabama National Guard and sent regular Army troops (without the governor's permission) to protect civil rights marchers as they traveled from Selma, Alabama, to Montgomery, Alabama.
• 1967 - Detroit, Michigan: President Lyndon B. Johnson sent Army troops from the 82nd & 101st Airborne Divisions to quell race riots at the request of Gov. George Romney. 
• 1968 - D.C., Chicago, & Baltimore: To quell race riots after the asssassination of Martin Luther King, Jr., President Lyndon B. Johnson deployed Marines, plus soldiers from the 3rd Infantry Regiment, 82nd Airborne, and 6th Cavalry Regiment to Washington, D.C.; soldiers from the 1st Armored Division & 5th Infantry Division to Chicago, Illinois; in addition to Airborne, infantry, and Marine units to Baltimore, Maryland.
• 1989 - Saint Croix, U.S. Virgin Islands: President George H.W. Bush deployed federal marshals, FBI agents, and National Guard troops to Saint Croix to quell looting & lawlessness in the aftermath of Hurricane Hugo.
• 1992 - Los Angeles, California: President George H.W. Bush federalized the California National Guard and deployed federal marshals, FBI agents, the 7th Infantry Division, and the 1st Marine Division at the governor’s request to quell riots & civil disturbances following the acquittal of four police officers who were on trial for the beating of Rodney King and the death of Latasha Harlins.

Can the Insurrection Act be invoked now?

• Given the assaults, arson, and property damage that has resulted from riots across the country, the president has the legal authority to deploy military units to assist local law enforcement in restoring order and protecting the civil rights of individuals.
• The president’s legal authority under the Insurrection Act isn’t contingent on a request by a governor to bring in federal troops, as Sections 252 & 253 allow unilateral exercise of the statutory authority.
• The biggest check on the deployment of federal troops under the Insurrection Act isn’t legal, as courts would likely defer to the plain language of the law & the president’s determination of the situation. Rather, the primary constraint is the political repercussions of such a deployment and whether public opinion is in favor of the use of federal military assets to assist local law enforcement in quelling riots & restoring order.

RESOURCES

• Congressional Research Service - The Posse Comitatus Act and Related
• Congressional Research Service - Defense Primer: Legal Authorities for the Use of Military Force
• Yale Law Journal - Emergency Power and the Militia Acts

— Eric Revell

(Photo Credit: California National Guard via Flickr / Creative Commons)