Trump has backed down – for the moment – from invoking the Insurrection Act. But what is it, and how does a mish-mash of laws keep us safe? Do they prevent us from abuses by the President?
The Insurrection Act was originally passed in 1807 and was signed into law by Thomas Jefferson on March 3rd of that year. The 116 words allow the President to call up militias to quell internal strife that cannot or is otherwise not able to be quelled by local and state law enforcement. In Article I, Sections 8, 9, and 10 of the Constitution of the United States variously give the President the authority to suppress internal uprisings and to provide for the defense of the United States itself. Initially, the Militia Acts of 1792 (and subsequent Militia Acts) provided for the formation and use of state militias, and the ability of the president to call them up in times of internal rebellion or strife otherwise not contained by governors or state officials. The 1807 Insurrection Act has been amended multiple times, including in 1861 and 1871. Public Law 114-328 now formally includes Guam and the US Virgin Islands, though it has been interpreted to include Puerto Rico and other outlying possessions of the United States. As amended, Section 252 (1956) states: “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.”
Regulated militias were originally designated as a reserve force of able-bodied men of the state, who supplied their own materiel and material needs for action, and date back to 1636 in the British colony of Massachusetts. . Unregulated militias existed as early as the mid-1500s. Much later, following the Spanish-American War, the National Guard was formed in every state, and regulations for qualifications and training were streamlined. It is now the National Guard that is called upon by the provisions of the Insurrection Act. The federalized National Guard can be called up by the President with or without the consent of the Governor of the said state or territory. Interestingly, the Insurrection Act is the only exception to posse comitatus as enacted in 1878. Posse comitatus disallows the use of federal military personnel to enforce domestic laws, and was a rebuff to the use of militias and the regular military in enforcing Reconstruction in southern states following the Civil War. A highly-readable guide to the use of militias in the United States during the 18th and 19th centuries can be found here.
The Insurrection Act has only been invoked 30 times in the 219 years since its codification – 16 times in the 19th century, 14 times in the 20th century, and none in the 21st century. requires the President to first make a proclamation, essentially a warning that bad actors must back down from their activities or else the deputized national guard will be called up to quell the uprising and restore order. Then, and only then, can the federalized Guard be deployed. Unfortunately, the wide latitude given to the president allows much room for abuse and overreach, and it has been argued that it is long past time to rework it for the 21st century.
The last time the Insurrection Act was used was in 1992 to stop the LA Riots following the police beating of Rodney King. “By the time Bush invoked the Insurrection Act in May 1992, dozens of Angelenos had been killed. Businesses weren’t just looted; they were burned to the ground. Entire city blocks had been reduced to rubble. Dusk-to-dawn curfews were in effect, and millions of residents were scared to leave their homes.” Clearly, resistance to ICE and demonstrations against the unlawful killing of Renee Good in Minneapolis have not risen to the level of the LA Riots – or any of the previous uses of the Act. ICE has flooded the streets of Minneapolis, outnumbering local law enforcement nearly 3 to 1, making it very difficult for local resources to cope with disturbances on the streets. However, they have been doing an admirable job, and the next step, should it become necessary, should be for Governor Walz, in consultation with the Mayor of Minneapolis, to call up the National Guard at the state level. In this case, their only job would be to protect and defend the city itself, not to become involved with policy disputes, arrests, or detentions, which would be a clear violation of posse comitatus. Trump has threatened – again – to invoke the Insurrection Act, despite this, though he has since backed down.
If you are interested in additional information about the Insurrection Act, see here and here. For a highly-readable reference sheet, see this short publication.
Remain vigilant and protest peacefully.
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