Insurrection ActUpdated: March 19, 2021
The Insurrection Act was originally passed in 1807 to amend previous laws authorizing the organization of militias. The Act as passed back then permitted the use of military force against foreign invaders or domestic uprisings. We’ll examine the specific rules of the act below.
The Act was amended following the Civil War. At the same time the 14th Amendment was added to the Constitution to permit the military to enforce federal laws with or without the permission of state governments in cases where constitutional rights must be protected or in cases where it is determined by the President that laws cannot be practically enforced due to an uprising or other crisis.
On the heels of this, Congress also passed laws restricting the use of federal troops to enforce domestic laws. This legislation was known as the Posse Comitatus Act.
The Insurrection Act has been amended multiple times including to add language characterizing Guam and the Virgin Islands as “states” for the purpose of invoking provisions of the act.
How The Insurrection Act Has Been Used
One of the most important uses of the Insurrection Act was in the 1960s when President John F. Kennedy used it to enforce the federally-required desegregation of Alabama schools. The Insurrection Act was also used during the Los Angeles Riots in the wake of the Rodney King verdict.
There were those who wanted to invoke the Act in the aftermath of Hurricane Katrina due to widespread problems following the disaster, but this did not happen.
Invocation of the Insurrection Act was also threatened in 2020 during the protests that erupted after George Floyd died while in police custody–a death that occurred on camera and that was witnessed on national television. As with Hurricane Katrina, the use of the act did not occur likely due to the political fallout that would have occurred.
A Brief History Of The Insurrection Act
The Insurrection Act as passed in 1807 was quite utilitarian. There were issues which needed to be addressed in a Constitutional manner, and the Insurrection Act attempts to address them. But as straightforward as that might be, the way the act came into existence was quite bizarre in comparison.
The 21st century does not have a monopoly on political kooks, rivalries, and bizarre expressions of political will. One only has to look at the example provided by Aaron Burr who, after destroying a political career by winning a duel with (and killing as a result) Alexander Hamilton in 1804.
According to History.com, Burr decided to hatch a plot to raise a private army with a goal of invading Mexico and claiming any lands conquered there for his own cause.
Burr apparently convinced himself that the first governor of the Louisiana Territory, General James Wilkenson, would support these efforts. Burr was mistaken. Wilkenson wrote a letter to President Thomas Jefferson detailing the plot.
Jefferson was already looking into Burr’s activities to the extent that he conferred with the Secretary of State, James Madison, about the constitutionality of using U.S. soldiers to stop such an effort.
Madison’s reply, in the negative, spurred a move to capture Aaron Burr without resorting to methods that were against the Constitution. Burr wasn’t captured easily in spite of what History.com reports as basically a bounty (Mandalorian style) for Burr.
In the meantime, the wheels of progress were turning. Jefferson asked Congress to pass a bill allowing the use of military forces in cases of insurrection. By the time the Insurrection Act was signed into law in 1807, Aaron Burr had been arrested and that particular case proceeded without the benefit of having invoked the Act.
The Insurrection Act Examined
There are several sections of the Act, describing:
- Federal aid for State governments under the Act
- Use of militia and armed forces to enforce Federal authority under the Act
- Interference with State and Federal law under the Act
- Proclamation to disperse
- Guam and Virgin Islands included as “State” for purposes of enforcing the Act
Before applicable portions of the act are enforced, there must be an order to disperse. This order must come from the President of the United States. This proclamation is, under the text of the act, required to “…immediately order the insurgents or those obstructing the enforcement of the laws to disperse and retire peaceably to their abodes within a limited time.”
Federal Aid For State Governments
The Insurrection Act allows the President to call upon federal troops to suppress the insurrection. But there’s a catch: consider what the text of the act specifically says about this power. The emphasis in the paragraph below is ours:
“Whenever there is an insurrection in any State against its government, the 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 of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.”
Note that this portion of the Insurrection Act does not give the President of the United States unilateral authority to call up military assistance to quell a rebellion, riot, or insurrection. The key for this specific portion of the Act is that such involvement from military forces is at the request of state government.
Use Of Militia And Armed Forces To Enforce Federal Authority
There is a bit more ambiguity in this section–but not much. Under this portion of the Act, the President of the United States may enforce federal authority in situations where “…the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States” make enforcement of the laws of the United States “impracticable” under normal judicial means in order to end a rebellion.
Interference With State And Federal Law Under The Act
In this section, the President is given the authority to use military means to “…suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy” but not in an unlimited way. This power may be exercised in cases where “…any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law”.
This power is further restricted to circumstances where “the constituted authorities of that State” cannot or will not protect those rights, privileges, etc. This power may also be used in circumstances where “…the State shall be considered to have denied the equal protection of the laws secured by the Constitution.”
Proclamation To Disperse
As mentioned above, any use of the Insurrection Act first requires a Presidential order to disperse. The Insurrection Act specifically says, “Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents or those obstructing the enforcement of the laws to disperse and retire peaceably to their abodes within a limited time.”
Guam And Virgin Islands Included As “State”
This section, one of the various portions of the Act amended as the size and nature of the United States evolved over time, adds Guam and Virgin Islands as “states” for the sole purpose of enforcing the Act.
What You Need To Know About The Insurrection Act
Every aspect of what the Insurrection Act covers has been detailed here. There are no other provisions of the Act to be concerned with in terms of whether a sitting President can invoke the Act to alter the results of an election, a vote in Congress, or other issues.
The Insurrection Act has very specific legal authority and is not intended as a blanket authorization to or as an excuse for loosely invoking laws addressing the extremes of political necessity such as martial law or the use of the Insurrection Act itself.
Joe Wallace is a 13-year veteran of the United States Air Force and a former reporter for Air Force Television News