Don’t Fear the Insurrection Act

Summary

• President-elect Trump has indicated that he wants to utilize the U.S. military to assist with the monumental task of removing millions of illegal and criminal aliens. But it is widely assumed that the “Posse Comitatus Act” of 1878 (PCA) — making it a criminal offense “except [as] expressly authorized by the Constitution or … Congress”, to “willfully use[] any part of the [U.S. military] as a posse comitatus or otherwise to execute the laws” — will present an insurmountable obstacle to his doing so. But this assumption is incorrect — the Posse Comitatus Act presents no such obstacle:
  • First, the PCA by its own terms does not apply where Congress has expressly authorized otherwise, which Congress has done through the “Insurrection Act”, in its original form enacted in 1792.
  • Second, as President Eisenhower’s attorney general concluded, there are “grave doubts as to the authority of the Congress to limit the constitutional powers of the President to enforce the laws and preserve the peace under circumstances which he deems appropriate”.
  • Third, the PCA does not apply to the National Guard when under the command and control of state governors.
  • Fourth, as Congress has explained, the PCA was “expressly intended to prevent [U.S.] Marshals, on their own initiative, from calling on the Army for assistance in enforcing Federal law”, where soldiers were bound to obey the marshals’ commands. The PCA was likely never intended to inhibit the president’s own ability to call on the military domestically to “execute the laws”.
• The PCA was motivated by an ugly racial animus. Its “ignominious origins” were in Southern anger over the use of federal troops to protect the physical safety and constitutional and statutory rights, especially the right to vote, of freed slaves. The PCA was “an effort to protect white supremacist groups in the South and to curb what was perceived … as the Army’s affiliation with the rise of black power”.

• The Insurrection Act, originally enacted in 1792 and revised by Congress on multiple occasions, now provides in relevant part that:

  • Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the [U.S.], make it impracticable to enforce the laws of the [U.S.] 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.
  • The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it … opposes or obstructs the execution of the laws of the [U.S.] or impedes the course of justice under those laws.

• Over the past 232 years, presidents have relied on the Insurrection Act to deal with 30 crises involving insurrection and domestic violence, in order to safeguard the nation, protect the lives of both citizens and noncitizens, allow the federal government to carry out its functions, safeguard the rights of freed slaves during post-Civil War Reconstruction and their descendants during the 20th Century’s civil rights struggles, and safeguard interstate commerce.

  President Ulysses S. Grant used the Insurrection Act “to suppress the terrorist insurgency waged by the first incarnation of the Ku Klux Klan”, President Grover Cleveland used it “to protect Chinese immigrants from violent white mobs”, and Presidents Dwight Eisenhower, John F. Kennedy, and Lyndon Johnson used it to “protect African Americans’ civil rights during the Little Rock crisis, the Ole Miss Riot, and the so-called Stand in the Schoolhouse Door in Alabama”.

• The Supreme Court, scholars and commentators agree that the Insurrection Act grants the president an extraordinary amount of power and discretion in the use of that power:
  • The Supreme Court has ruled that “the authority to decide whether the exigency has arisen belongs exclusively to the President, and … his decision is conclusive upon all other persons”, and that “Whenever a statute gives a discretionary power to any person to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts … such is the true construction of the Insurrection Act.”
  • Scholars and commentators have concluded that the Insurrection Act “quite literally places no limits on what actions the president can take”, represents a “blank check” to the president, is “a boundless and highly dangerous delegation of authority”, “commits the decision to deploy entirely to the president’s discretion, leaving no basis for judicial review”, “leave[s] virtually everything up to the discretion of the president”, and “gives the president far too much discretion to use the military as a domestic police force”.
• Anti-Reconstruction members of Congress, often apologists for slavery, vociferously opposed the strengthening of the Insurrection Act in 1871 during congressional debate, making many preposterous and melodramatic accusations:
  • They claimed that the legislation represented “sheer wickedness” and “cruelty and oppressiveness”, possessed “unusual harshness and cruelty”, was “pernicious” and “without example for injustice and intolerance”, would “breed evil and nothing but evil”, was “un-constitutional, anti-republican, and vindictive”, was “inspired by bitterness and hate”, and was a “hydra headed monster”.
  • They claimed that the legislation would lead to “a consolidated despotism”, “despotic power”, an “irresponsible despotism”, an “imperial display of power”, was “a systematic … attack upon our form of government”, would “subvert[] at a blow all the safeguards of the liberties of the people”, would “destroy[] essential and necessary safeguards to the life and liberty of the citizen” and convert the Constitution into “a weapon for the destruction of the liberties of all the people!”, that “the honest yeomen of the land, who love the liberties their fathers won for them … are not yet aware of [its] perils”. Further, the legislation would “lodge[] in the hands of the President powers that cannot be safely entrusted to him or any other one man”, that if “it is necessary now to lay the foundation for the government by the sword and the bayonet … with no limit but the executive will, then is our republican form of government a failure”, that “[t]his bill and our system of government cannot both stand; the one must be rejected or the other must be destroyed”, and that “it is not possible for the perverse ingenuity of man to frame a measure in more direct antagonism to our whole system of government”.

• Despite the survival of our constitutional democracy in the century and a half since these accusations were made, many current commentators continue to vociferously oppose the Insurrection Act and make similar preposterous accusations:

  • They claim that the Insurrection Act is “a land mine” that “Donald Trump … could use to destroy our republic”, “give[s] Trump enormous latitude to wield the staggering power of the state against his domestic political enemies”, that its “broad grant of power makes [it] far more immediately dangerous than many other threatened Trump actions”, and that it is a “terrible tool [in] Trump’s … hands”.
  • They claim that that “an angry, vindictive president could send regular army troops straight into American cities at the first hint of protest”, that it is “a power [presidents] never should have possessed”, “gives any president far too much unchecked power”, that there are “no limits on what actions the president can take”, that “a president might one day use these powers to try to do away with democracy for good”, that it is “ripe for abuse in ways that could directly threaten democracy”, “could be used as a tool of oppression”, and “grant[s] the president one of the powers that the founders most feared: the ability to turn a standing army inward against the people”.

  It might be time for these generally, but not uniformly, liberal commentators to reconsider the fear and contempt with which they view the Insurrection Act, which has been such a force for good for over 200 years, rather than continue to exalt the racist Posse Comitatus Act.

• President Trump would have ample justification to use the Insurrection Act to allow the U.S. military to assist with large-scale deportation efforts:

  • The Supreme Court has concluded that “[a]mong the powers expressly given to the national government [by the Constitution] are the control of interstate commerce and the creation and management of a post office system for the nation”, regarding which “the national government may prevent any unlawful and forcible interference”. Further, the “strong arm of the national government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails” and “If the emergency arises, the army of the Nation, and all its militia, are at the service of the Nation to compel obedience to its laws.”
  • Enforcement of our nation’s immigration laws is likewise a power that the Constitution has given to the national government. The Supreme Court has stated that “Our cases have long recognized the preeminent role of the Federal Government with respect to the regulation of aliens within our borders … [d]erive[d] from various sources, including the Federal Government’s [constitutional] power[s] ‘[t]o establish [a] uniform Rule of Naturalization’, ‘[t]o regulate Commerce with foreign Nations’ and its broad authority over foreign affairs.” The president would seemingly have at least as much rationale to use the military to help enforce the immigration law as to help ensure the delivery of the mail.
  • It seems obvious that “unlawful obstructions” and “combinations” “make it impracticable to enforce” our immigration laws “by the ordinary course of judicial proceedings”, that “domestic violence” and “unlawful combination” opposes or obstructs the execution of our immigration laws. Most illegal entry to the U.S. is now controlled by criminal cartels in Mexico, whose smuggling revenue stands at an estimated $13 billion a year. The vast majority of apprehended but undetained aliens are never removed, and there are likely over a million fugitive aliens, ordered removed but currently at large in the U.S.

  If anything is “extreme”, it is the extent to which the U.S.’s criminal and civil immigration laws go unenforced, often through claims that they are impracticable to enforce. There would be nothing more reasonable than, through the Insurrection Act, to call on the cavalry to ride to the rescue.

I. Introduction

Tom Fitton, president of Judicial Watch, wrote on Truth Social that President-elect Trump will “declare a national emergency and will use military assets” to aid in “a mass deportation program[]”, which Trump reposted with the comment “TRUE!!!”

What might use of the military for such purpose entail? In November 2023, according to the New York Times, incoming White House Deputy Chief of Staff Stephen Miller indicated that “Mr. Trump would invoke the Insurrection Act at the border, enabling the use of federal troops to apprehend migrants”. More recently, Miller told Charlie Kirk during a radio interview that:

• [I]n terms of personnel, you go to the red state governors and you say, give us your National Guard. We will deputize them as immigration enforcement officers. They know their states, they know their communities, they know their cities. So it’s not like you're asking somebody to move away from their family.

• The Alabama National Guard is going to arrest illegal aliens in Alabama and the Virginia National Guard in Virginia. And if you're going to go into an unfriendly state like Maryland, well, there would just be Virginia doing the arrest in Maryland, right, very close, very nearby. So you have experienced [U.S. Immigration and Customs Enforcement] ICE veterans who are leading the operations and then you scale up the personnel by bringing in both other federal law enforcement officers … think DEA, ATF, et cetera, and then the National Guardsmen.

Also recently, Tom Homan, the Trump administration’s incoming border czar, said on Fox Business News that:

[The military will] be used to do non-enforcement duties such as transportation … infrastructure building, intelligence …, things that [currently] take … ICE [officers] off the street. Let the military do those duties. It doesn’t require immigration authority. They’ll be a force multiplier[, allowing us to] take more [ICE] agents [and] put them on street where we need them.

To the extent that the Trump administration, facing the monumental task of removing millions of illegal and criminal aliens, wants to use military personnel in a domestic law enforcement capacity (rather than simply in supporting/logistics roles, as has traditionally been done), won’t the 146-year-old “Posse Comitatus Act” of 1878 (PCA) present a significant obstacle? The answer is widely assumed to be yes. For instance, the New York Post’s Diana Glebova and Jennie Taer reported that “Any attempt to use active-duty troops would be subject to legal challenges, as the [PCA] limits the federal government’s use of the military to enforce domestic policy.”

This report analyzes the text, legislative history, historical usage, of both the Posse Comitatus Act and the Insurrection Act and considers their impact on the use of the military in deportation initiatives. I conclude that the Trump administration may indeed use military personnel in a domestic law enforcement capacity to remove illegal aliens.

II. The Posse Comitatus Act

The Posse Comitatus Act provides that:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

OK, this is the PCA in its current iteration. The statute originated as an amendment by U.S. Rep. J. Proctor Knott (D-Ky.) to an Army appropriations bill, signed into law on June 18, 1878. The Air and Space Forces were added more recently.

The House Judiciary Committee noted in 1981 that “According to a spokesperson for the Department of Justice [DOJ], no one has [ever] been charged or prosecuted under the [PCA] since its enactment.”¹

Marshal or President?

Congress likely never intended the PCA to inhibit a president’s ability to call on the military domestically to “execute the laws”. Rather, it was designed to overturn the “Cushing Doctrine”, issued on May 27, 1854 by Attorney General Caleb Cushing and allowing a marshal or sheriff, in calling for the assistance of a posse comitatus, to call on military forces who would be “bound to obey [his] commands”. I should note that, as the House Judiciary Committee explained citing Blackstone’s Commentaries, “Posse comitatus (literally ‘power of the county’) was defined at common law as all those over the age of 15 upon whom a sheriff could call for assistance in preventing any type of civil disorder.”²

Attorney General Cushing reasoned that:

[For] the posse comitatus comprises every person in the district or county above the age of fifteen years ... whatever may be their occupation, whether civilians or not; and including the military of all denominations, militia, soldiers, marines, all of whom are alike bound to obey the commands of a sheriff or marshal. The fact that they are organized as military bodies, under the immediate command of their own officers, does not in any wise affect their legal character. They are still the posse comitatus.

As Coast Guard officers Gary Felicetti and John Luce explained in the Military Law Review, “the primary evil addressed by the [PCA] was the marshal’s power to call out and control the Army”, which “permit[ed] minor, unelected civilian officials to control parts of the standing army … without even the [president’s] knowledge’, and “the loss of control over army troops via the Cushing Doctrine”. Similarly, Robert Coakley, deputy chief historian at the U.S. Army Center of Military History, wrote in “The Role of Federal Military Forces in Domestic Disorders 1789-1878” about the origin of the PCA that:

• [S]everal [Congressmen] did raise questions about the frequent use of posses under the Cushing Doctrine, noting that command of Army forces fell into the hands of marshals and sheriffs without any approval of the commander in chief.

• To judge by [the PCA’s] wording … as well as the speech of Representative Knott in introducing the measure, all that it really did was to repeal a doctrine whose only substantial foundation was an opinion by … [A]ttorney [G]eneral [Cushing], and one that had never been tested in the courts. The president's powers to use both regulars and militia remained undisturbed by the [PCA] … . But the [PCA] did mean that troops could not be used on any lesser authority than that of the president. … Commanders in the field would no longer have any discretion, but must wait for orders from Washington.

The Congressional Research Service (CRS) concluded that:

[In 1882, t]he Senate Judiciary Committee point[ed] out that the [PCA] was meant to curb the practice of local marshals and their subordinates employing the Armed Forces to assist them in enforcing the law, but not to prevent the President from himself using any part of the Army under a military chain of command.

CRS was referring to U.S. Sen. George Edmunds’s (R-Vt.) explanation to the Senate on behalf of the Senate Judiciary Committee that the PCA was enacted to negate any implied authority of federal marshals to be able to “call upon the Army”, “have command of the Army”, and “direct [it] what to do”:

The [PCA] arose out of an implied authority to the marshals and their subordinates executing the laws to call upon the Army just as they would upon bystanders who, if the Army responded, would have command of the Army or so much of it as they had, just as they would of the bystanders, and would direct them what to do … . [T]he President … having the power of employing any part of the Army from three soldiers to three thousand to assist in the execution of the laws … retains the dominion over this Army himself and the soldiers under command of their own officers to aid the civil authorities, instead of being under the command of the marshal.

Further, William Rehnquist, future chief justice of the U.S. Supreme Court, concluded in 1971 in his capacity as assistant attorney general in charge of DOJ’s Office of Legal Counsel (OLC), that the PCA “was originally enacted in 1878 for the purpose of preventing [U.S.] Marshals, on their own initiative, from calling upon troops to assist them in performing their duties…. [and] prevent[ing] use of troops in direct law enforcement under command of minor civilian officials”.

And, in 2002, more than a century following the PCA’s enactment, Congress explained when creating the Department of Homeland Security that the PCA had been “expressly intended to prevent [U.S.] Marshals, on their own initiative, from calling on the Army for assistance in enforcing Federal law”.

Thus, to the extent that its language is ambiguous, it is far from clear that the PCA operates to constrain a president’s own use of the military.

I should note, however, that Rep. Knott stated during House floor debate on the PCA on May 27, 1878, that:

The amendment I propose is comprehensive. It reaches from the Commander-in-Chief down to the lowest officer in the Army who may presume to take upon himself to decide when he shall use the military force in violation of the law of the land. It is not only the Executive who has been guilty of using troops under circumstances not authorized by law, but officers of various grades. And it is to prevent a recurrence of this usurpation of authority by any grade of officers that this amendment is proposed.

The President’s Constitutional Prerogative

A. The Founders

Robert Coakley wrote in The Role of Federal Military Forces in Domestic Disorders 1789-1878 that:

The sentiment that a standing army in time of peace was “dangerous to the liberties of the people,” a standard article of faith of almost all Americans in the post-Revolutionary period, derived largely from fears that such an army would be used by an arbitrary government to tyrannize its own people, not to fight its foreign foes.

But Coakley explained that:

[While m]ost of the members of the Constitutional Convention that met in Philadelphia in the summer of 1787 were imbued with this philosophy … they were far too practical and experienced not to recognize that some sort of force must buttress the “laws of the union” if that union was indeed to be more permanent than the one established under the Articles of Confederation. They knew that the ordinary processes of civil law could sometimes be insufficient, and they were accustomed to the use of militia by colonial and state governments in domestic emergencies. It has been customary to think of the militia as a force employed only in fighting Indians or a foreign enemy; in truth it was, from its beginnings, also an instrument for the suppression of insurrection and rebellion, the enforcement of law, and the performance of a host of other services at the behest of both governors and local officials … . It was a logical corollary, therefore, that any new federal government created must have a force sufficient to ensure that its laws could be enforced throughout a wide and sparsely settled geographic territory, to take care of domestic violence or insurrection that a state’s constituted authorities proved unable to handle, and indeed to settle quarrels between the states themselves. How to assure these ends without granting powers to the federal executive that would tempt him to use military force to suppress the liberties of the people, as the British government was thought to have done, was one of the fundamental dilemmas the framers of the Constitution faced.

The founders were chastened by the Shays Rebellion of 1786. As the National Constitution Center describes:

[F]armers in western Massachusetts — facing high land taxes (and growing debt) and feeling that the economic (and governing) class in Boston didn’t represent them … organized themselves into an armed fighting force … seized control of court buildings preventing the state government from taking possession of their farms… forced debtors’ prisons to close … [and] attempted to commandeer the arsenal at Springfield, Massachusetts. Their plan was to march to Boston and confront the Massachusetts government.

Under the Articles of Confederation, Congress had no power to raise an army … [but] could [only] ask the states for help. … [A] Massachusetts militia eventually put down the rebellion. For many in the Founding generation — including George Washington, Alexander Hamilton, and James Madison — Shays’ Rebellion was proof that the Articles were too weak to govern the country.

Coakley concluded that “the shock effect of the rebellion had much to do with the movement for a constitutional convention.” He explained that:

[C]onservative leaders everywhere could but view with alarm the dangers of a movement that might have disrupted the country had it had more effective leadership … . The specter of th[e] drab and reluctant rebel, Capt. Daniel Shays, was ever present in the minds of the men who met at Philadelphia in the summer of 1787 to draw up [the Constitution]. The need to provide the federal government with the powers to deal with similar eruptions in the future acted as an effective counterbalance to the fears of the use of federal military force in domestic emergencies.

Alexander Hamilton argued in Federalist Paper No. 28:

That there may happen cases in which the national government may be necessitated to resort to force, cannot be denied. Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes arise in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law … has no place but in the reveries of those political doctors whose sagacity disdains the admonitions of experimental institutions. Should such emergencies at any time happen under the national government, there could be no remedy but force. The means to be employed must be proportioned to the extent of the mischief.

B. The Constitution

As to the drafting of the Constitution and its ratification by the states, Coakley explained that:

Throughout the great debates both in the Constitutional Convention and the ratifying bodies, none of the most ardent Antifederalists ever advocated that the federal government should possess no power whatsoever to use military force in domestic disorders. In the ratifying conventions there was little argument at all over the clause permitting the federal government to intervene in a state on the application of its legislature or governor. And with regard to calling forth the militia “to execute the laws of the Union,” the principal effort was devoted to restricting this congressional power in as many ways as possible. What emerged was, in effect, a consensus that the militia would be used by the federal government in only those instances where civil law should completely fail and that, at all odds, the creation and use of a standing army to control the people was the greatest danger to be avoided. The authors of the Constitution had extended to the new federal government the same powers to use military force in domestic emergencies that the state government had, by law and custom, long exercised … . [I]t provided a sufficient basis for the federal government to take a hand in any repetition of Shays’ Rebellion.

As to the constitutional basis for the new federal government’s powers to use military force in domestic emergencies, Elizabeth Goitein and Joseph Nunn have written for the Brennan Center that:

• [T]he Calling Forth Clause in Article I, Section 8 empowers Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

• The only other provision of the Constitution that potentially implicates domestic deployment is Article IV, Section IV, which, among other things, charges the federal government as a unified whole with protecting the individual states from invasion, and, at the request of the relevant state government, from domestic violence.

• As Justice Jackson explained in [his famous concurring opinion in the Supreme Court’s 1952 decision in] Youngstown[ Sheet & Tube Co. v. Sawyer], the Calling Forth Clause “underscores the Constitution’s policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy.”

Goitein and Nunn elsewhere asserted that:

• Fundamentally, the plain text of the [PCA] allows only for “express” exceptions, and nothing in the Constitution expressly authorizes the president to use the military for law enforcement under any circumstances.

• Although the text of the [PCA] allows for federal military participation in law enforcement “in cases and under circumstances expressly authorized by the Constitution,” no such constitutional exceptions to the Act are generally recognized. To be sure, this is a subject of scholarly debate. Yet the legislative history of the Act suggests that its drafters chose to include the language about express constitutional exceptions as part of a face-saving compromise, not because they believed any existed. The Department of Defense [DOD] and [DOJ’s OLC] have asserted authority to deploy federal troops for law enforcement purposes based on alleged inherent constitutional exceptions to the Act, but these claims have never been … adjudicated by a court.

The Congressional Research Service has taken a more equivocal approach, concluding that:

The question of whether the constitutional exception contained in the [PCA] includes instances where the President is acting under implied or inherent constitutional powers or whether it was merely a face-saving device is a question that may turn on whether Congress may constitutionally restrict the President’s powers, if any, in the area—a question the courts have yet to answer.

Others have forcefully and persuasively argued that the president does indeed have inherent/implied constitutional powers to utilize the military in cases of domestic emergency. Sen. William Windom (R-Minn.) stated on June 7, 1878, during debate on the PCA, that “[a]s a matter of course, you cannot limit the power of the President as authorized and granted by the Constitution” – whether express or implied. Walter A. Lorence concluded in The Constitutionality of the Posse Comitatus Act that:

[I]t is evident that the word expressly in the [PCA] cannot be construed as placing a restriction on the constitutional Power of the President, because even though not expressly named, such constitutional power cannot be taken away by legislation ... . Thus, the [PCA] appears to be a rather singular statute to pass, saying that the Army … shall not be used for the purpose of executing the laws, in view of the fact that the Constitution expressly makes the President the Commander-in-Chief of the Army and Navy, and expressly makes it his duty to take care that the laws are faithfully executed.³ [Emphasis in original.]

In 1957, Attorney General Herbert Brownell, Jr. issued an opinion on the “President’s Power to Use Federal Troops to Suppress Resistance to Enforcement of Federal Court Orders – Little Rock Arkansas”, advising President Eisenhower that “There are … grave doubts as to the authority of the Congress to limit the constitutional powers of the President to enforce the laws and preserve the peace under circumstances which he deems appropriate.”

And, in 2002, Congress explained that the PCA “is not a complete barrier to the use of the Armed Forces for … law enforcement functions, when … the President determines that the[ir] use … is required to fulfill the President’s obligations under the Constitution to respond promptly in time of war, insurrection, or other serious emergency.”

As for specific examples of a president’s constitutional powers, first, in 1971, William Rehnquist concluded in his OLC opinion that:

• [T]he [PCA] does not prevent the use of troops to protect the functioning of the government by assuring the availability of federal employees to carry out their assigned duties and … troops may therefore be utilized to prevent traffic obstructions designed to prevent the access of employees to their agencies … .

  [T]he [PCA] applies to the use of troops to perform essentially law enforcement duties and does not impair the President’s inherent authority to use troops for the protection of federal property and federal functions.

• The conclusions are … supported by the historic and judicial recognition of the President’s inherent powers to use troops to protect federal property and functions as a necessary adjunct of his constitutional duties under Article II, Section 3 of the Constitution … .

  [In 1890, t]he Supreme Court … recognized this authority … [in] In re Neagle … involv[ing] the use of a marshal to protect a federal officer[.] [T]he Court indicated that troops might have been used when necessary. Citing the example of obstruction to the mails, it noted that troops could be used to prevent such obstruction to a vital federal function pursuant to the inherent authority of the President. … When the mails were obstructed during a railway strike, President Cleveland ordered out the troops for the purpose of protecting federal property and “removing obstructions to the United States mails.” [See discussion of the Supreme Court’s 1895 In re Debs decision below.]

  The intended obstruction of the Mayday Movement, as publicly announced, extends beyond a single federal function such as the carriage of the mails, although the mails could certainly be affected. The objective is to obstruct all federal functioning in the nation’s capital. It is the President’s constitutional duty to protect this functioning and prevent its obstruction, and he has the inherent authority to use troops, if necessary, to carry out this duty.

• [W]here federal functions are obstructed, invocation of … statutory provisions is not essential to the use of troops in a protective capacity.

In 2018, DOD rescinded its regulations concerning defense support of civilian law enforcement agencies and rescinded its regulations concerning defense support of civil authorities, but continues to have almost identical internal guidance. In line with OLC’s opinion, DOD’s guidance on support of civilian law enforcement agencies states that:

Categories of active participation in direct law enforcement-type activities (e.g., search, seizure, and arrest) that are not restricted by law or DoD policy [include that f]ederal military commanders have the authority, in extraordinary emergency circumstances where prior authorization by the President is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances … [when] duly constituted Federal, State, or local authorities are unable or decline to provide adequate protection for Federal property or Federal governmental functions. Federal action, including the use of Federal military forces, is authorized when necessary to protect Federal property or functions.

Second, following 9/11, DOJ’s Deputy Assistant Attorney General John Yoo and Special Counsel Robert Delahunty wrote a memo entitled “Authority for Use of Military Force to Combat Terrorist Activities Within the United States” for the counsel to the president and the general counsel of DOD, concluding that the PCA “only applies to the domestic use of the Armed Forces for law enforcement purposes, rather than for the performance of military functions” (emphasis in original), and that “Article II of the Constitution, which vests the President with the power to respond to emergency threats to the national security, directly authorizes use of the Armed Forces in domestic operations against terrorists.”

In line with the Yoo and Delahunty memo, DOD’s guidance on support of civilian law enforcement agencies states that:

Categories of active participation in direct law enforcement-type activities … that are not restricted by law or DoD policy [include a]ctions taken for the primary purpose of furthering a DoD or foreign affairs function of the [U.S.], regardless of incidental benefits to civil authorities. This does not include actions taken for the primary purpose of aiding civilian law enforcement officials or otherwise serving as a subterfuge to avoid the restrictions of the [PCA].

Third, DOD’s guidance on support of civilian law enforcement agencies states that:

Categories of active participation in direct law enforcement-type activities … that are not restricted by law or DoD policy [include that] Federal military commanders have the authority, in extraordinary emergency circumstances where prior authorization by the President is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances because … [s]uch activities are necessary to prevent significant loss of life or wanton destruction of property and are necessary to restore governmental function and public order.

Cases and Circumstances Expressly Authorized by Act of Congress

Congress explained in 2002 that the PCA “is not a complete barrier to the use of the Armed Forces for … law enforcement functions, when the[ir] use … is authorized by Act of Congress”, and that existing laws, including the Insurrection Act, “grant the President broad powers that may be invoked in the event of domestic emergencies … specifically authoriz[ing] the President to use the Armed Forces to help restore public order”.

Attorney General Brownell wrote to President Eisenhower that:

[A]t the time the [PCA] was enacted, the predecessors to [the current Insurrection Act] were in force and the Congress did not intend or interpret the [PCA] as impairing whatever powers the President had under those statutes. The sponsors of the [PCA] expressly so stated during the course of the debates. This was also the view of President Hayes who approved the [PCA].

DOD’s guidance on support of civilian law enforcement agencies states that:

Categories of active participation in direct law enforcement-type activities (e.g., search, seizure, and arrest) that are not restricted by law or DoD policy [include] … DoD actions taken pursuant to [the Insurrection Act] relating to the use of Federal military forces in specified circumstances with respect to insurrection, domestic violence, or conspiracy that hinders the execution of State or Federal law.

I will later discuss the Insurrection Act and other statutory authority for presidential action.

Leading Cases on the Posse Comitatus Act

U.S. v. Red Feather (U.S. District Court for the District of South Dakota — 1975)

United States v. Red Feather involved persons who had been charged with violating the Civil Obedience Act of 1968, one element of which was “obstruct[ing], imped[ing], or interfere[ing] with any fireman or law enforcement officer lawfully engaged in the lawful performance of … official duties”. (Emphasis added.) As described by the Eighth Circuit in U.S. v. Casper, those charged “contend[ed] that use was made of the armed forces at Wounded Knee during the civil disorder to such an extent that it constituted a violation of the [PCA] … and thus rendered the actions of the federal officers … unlawful for purposes of a … conviction”.

The district court ruled that:

• [T]he clause contained in [the PCA] “uses any part of the Army or the Air Force as a posse comitatus or otherwise” means the direct active use of Army or Air Force personnel and does not mean the use of Army or Air Force equipment or materiel.

• [T]he clause “to execute the laws”, contained in [the PCA] makes unlawful the use of federal military troops in an active role of direct law enforcement by civil law enforcement officers. Activities which constitute an active role in direct law enforcement are: arrest; seizure of evidence; search of a person; search of a building; investigation of crime; interviewing witnesses; pursuit of an escaped civilian prisoner; search of an area for a suspect and other like activities. Such use of federal military troops to “execute the laws”, or as the Court has defined the clause, in “an active role of direct law enforcement”, is unlawful under [the PCA] … .

  Activities which constitute a passive role which might indirectly aid law enforcement are: mere presence of military personnel under orders to report on the necessity for military intervention; preparation of contingency plans to be used if military intervention is ordered; advice or recommendations given to civilian law enforcement officers by military personnel on tactics or logistics; presence of military personnel to deliver military materiel, equipment or supplies, to train local law enforcement officials on the proper use and care of such material or equipment, and to maintain such materiel or equipment; aerial photographic reconnaissance flights and other like activities. Such passive involvement of federal military troops which might indirectly aid civilian law enforcement is not made unlawful under [the PCA]…. [Emphasis in original.]

In line with this decision, DOD’s guidance on support of civilian law enforcement agencies states that:

Except as authorized … DoD personnel are prohibited from providing the following forms of direct civilian law enforcement assistance:

(a) Interdiction of a vehicle, vessel, aircraft, or other similar activity.

(b) A search or seizure.

(c) An arrest; apprehension; stop and frisk; engaging in interviews, interrogations, canvassing, or questioning of potential witnesses or suspects; or similar activity.

(d) Using force or physical violence, brandishing a weapon, discharging or using a weapon, or threatening to discharge or use a weapon except in self-defense, in defense of other DoD persons in the vicinity, or in defense of non-DoD persons, including civilian law enforcement personnel, in the vicinity when directly related to an assigned activity or mission.

(e) Evidence collection; security functions; crowd and traffic control; and operating, manning, or staffing checkpoints.

(f) Surveillance or pursuit of individuals, vehicles, items, transactions, or physical locations, or acting as undercover agents, informants, investigators, or interrogators.

(g) Forensic investigations or other testing of evidence obtained from a suspect for use in a civilian law enforcement investigation in the [U.S.] unless there is a DoD nexus (e.g., the victim is a member of the Military Services or the crime occurred on an installation under exclusive DoD jurisdiction) or the responsible civilian law enforcement official requesting such testing declares in writing that the evidence to be examined was obtained by consent.

U.S. v. McArthur (U.S. District Court for the District of South Dakota — 1976)

In U.S. v. McArthur, a similar case to Red Feather, the district court ruled that:

“[E]xecute” implies an authoritarian act. I conclude that the feared use which is prohibited by the [PCA] is that which is regulatory, proscriptive or compulsory in nature, and causes the citizens to be presently or prospectively subject to regulations, proscriptions, or compulsions imposed by military authority.

[T]he standard I apply is this:

Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee in such manner that the military personnel subjected the citizens to the exercise of military power which was regulatory, proscriptive, or compulsory in nature, either presently or prospectively?

In line with this decision, DOD’s guidance on support of civilian law enforcement agencies states that:

These forms of indirect assistance are not prohibited by law or DoD policy … Such other actions, approved in accordance with procedures established by the DoD Components concerned, that do not subject civilians to the use of DoD power that is regulatory, prescriptive, proscriptive, or compulsory.

U.S. v. Casper (Eighth Circuit Court of Appeals — 1976)

The Eighth Circuit in U.S. v. Casper affirmed the convictions in McArthur “on the basis of the trial court’s … well reasoned opinion”, noting that “the district court … announced its own legal standard for determining whether a violation of the [PCA] had occurred”, that being the “regulatory, proscriptive, or compulsory in nature” standard. I should clarify that the Eighth Circuit did not rule that the “regulatory, proscriptive, or compulsory in nature” standard was the only allowable standard that district courts could use.

The Racial Animus Motivating the Posse Comitatus Act

As Robert Coakley wrote, “It was somewhat ironic that it was the Southern Democrats who raised the questions about the Cushing Doctrine.” Why? He explained that:

For Cushing had really dredged it up in 1854 out of British law to serve Southern interests in enforcing the Fugitive Slave Act. But it now clearly had been turned against the white Southerners, and they were well aware of it, for they had seen firsthand how it could be used to enforce unpopular laws or sustain unwanted regimes.

The PCA is really of a piece with the Fugitive Slave Act of 1850, accurately described by the U.S. Marshals Service as “one of the most roundly hated and violently opposed laws in American history … requir[ing] U.S. Marshals in the north to return escaped slaves to their masters in the South”.

As DOJ’s OLC concluded in 1991, the PCA “was adopted … in response to objections from southern States to [U.S.] Army participation in civilian law enforcement during Reconstruction”, a euphemism for Southern anger over the use of federal troops to protect the physical safety and constitutional and statutory rights, especially the right to vote, of freed slaves.

That the PCA’s authors were informed by an ugly racial animus is widely admitted. Writing for the Brennan Center for Justice, which “[i]nspired by [iconic liberal Supreme Court] Justice William J. Brennan Jr.'s devotion to core democratic freedoms … works to strengthen democracy, end mass incarceration, and protect liberty and security”, Elizabeth Goitein and Joseph Nunn have acknowledged the PCA’s “ignominious origins” and concluded that it “was enacted in 1878, after the end of Reconstruction and the return of white supremacists to political power in both southern states and Congress[, i]ts immediate object [being] to prevent the federal military from intervening in the establishment of Jim Crow in the former Confederacy.”

Similarly, William Banks, director of the Institute for National Security and Counterterrorism and distinguished professor of law and professor of Public Administration, all at Syracuse University, concluded that the PCA “was as much an effort to protect white supremacist groups in the South and to curb what was perceived by many as the Army’s affiliation with the rise of black power as it was to underscore our nation’s baseline federalism and civilian control of the military”. Banks went on to explain that:

After the [Civil W]ar ended, extremists, most notoriously the Ku Klux Klan (KKK), committed acts of intimidation and terrorism in attempting to thwart Reconstruction in the South. The pre-Civil War reluctance to use the Army to maintain order in civil society except following a request from a state governor was put to an extreme test in the southern states. The situation was aggravated by the unwillingness of President Andrew Johnson to send troops to protect the new governments in the South that he had opposed. The newly reorganized states lacked the support of most of their influential citizens, and once the military occupation governments were withdrawn, the states lacked the civil institutions to provide protection against lawlessness.

The Klan and other sympathizers controlled entire counties in some states, and, fearing the prospect of a race war, Republican state governors were disinclined to call out a new black militia against the KKK. The governors and state legislatures passed resolutions asking the President for military forces to put down the Klan. President Johnson was reluctant, and never issued the required cease and desist proclamations or gave formal orders to the military to act … .

In 1869, President Ulysses S. Grant succeeded Andrew Johnson … [and] did not hesitate to use military force to support the congressional Radicals’ program of Reconstruction.

III. The Insurrection Act

As Elizabeth Goitein and Joseph Nunn have written, “Although often referred to as the ‘Insurrection Act of 1807,’” the federal statutory provisions known as the Insurrection Act are “in fact an amalgamation of laws passed by Congress between 1792 and 1874.”

The “Calling Forth Act” (1792)

The Act of May 2, 1792 (1792 Act), “to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections and repel invasions”, provided that:

• That whenever the [U.S.] shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President … to call forth such number of militia of the state or states most convenient to the place of danger or scene of action, as he may judge necessary to repel such invasion, and to issue his orders for that purpose, to such officer or officers of the militia as he shall think proper; and in case of an insurrection in any state, against the government thereof, it shall be lawful for the President … on application of the legislature of such state, or of the executive (when the legislature cannot be convened) to call forth such number of the militia of any other state or states, as may be applied for, or as he may judge sufficient to suppress such insurrection.

• That whenever the laws of the [U.S.] shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President … by an associate justice or the district judge, it shall be lawful for the President … to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the [U.S.] be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session.

• That whenever it may be necessary, in the judgment of the President, to use the military force hereby directed to be called forth, the President shall forthwith, and previous thereto, by proclamation, command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited time.

Robert Coakley explained regarding the 1792 Act that:

• Th[e provision marked by the first bullet)] occasioned little debate and appears to have been passed much as the committee reported it. It made no provision for an insurrection against the national government, only against the government of a state; and the use of the word “insurrection” was not in consonance with the constitutional guarantee in Article IV, Section 4, to protect a state against “domestic violence,” which might be presumed to mean something less than “insurrection.”

• The President’s [1968] Commission on Civil Disorders noted the difficulties in the wording of this section … and recommended that the word “insurrection” be changed to “domestic violence,” and that the president be expressly authorized to call the militia of the state in which violence occurred as well as that of other states…. The explanation for the word “insurrection” appears to be that Congress was enacting a law primarily designed to provide for calling forth the militia under Article I, Section 8, to repel invasions and suppress insurrections while at the same time incorporating the provisions of Article IV, Section 4. The term “domestic violence” in the later article was simply equated to “insurrection.”

As to the second provision, Coakley explained:

• The [provision marked by the second bullet] covered the more sensitive point of calling forth the militia to “execute the laws of the Union,” a situation in which no state request would be involved. Some members of the House at least equated organized resistance to federal laws with “insurrection” against the national government and so provided in the second section what they had omitted in the first.

• [It] was adopted only after prolonged debate, and some of its phraseology resulted from floor amendments. After some preliminary fencing, Representative John Page of Virginia moved to strike the clause entirely. “It holds out an idea of resistance which I will not suppose can exist. Mild and equitable laws will not be resisted; and if Congress should be so infatuated as to enact those of a contrary nature, I hope they will be repealed and not enforced by martial law ... . Representative Abraham Clark of New Jersey supported him, noting that it could be used in case of opposition to the excise law “so that if an old woman was to strike an excise officer with a broomstick, forsooth the military is to be called out to suppress an insurrection.”

  Representative John F. Mercer of Virginia took a more moderate view, citing the need for the power to exist, since he had “no idea that this government was to depend on the several state governments for carrying its laws into execution.” He cautioned that it must be used sparingly …

  [as] in no free country can [military power] be called forth nor martial law proclaimed except under great restrictions. He observed that … the marshals of the several States have a power to call forth the posse comitatus … and only in the last extremity they may call forth the military power; he was in favor on the whole of retaining the clause.

• Both William B. Giles of Virginia and Abraham Baldwin of Georgia suggested that the power should not be delegated but retained in Congress which body could, when the necessity arose, then make proper provision for its exercise. “The power now under consideration,” Giles thought, “could not with safety be entrusted to the President[.”]

Coakley then discussed the legislative compromise that resolved the issue in Congress:

• Although all moves to strike the clause were voted down, a consensus emerged that the delegation of powers to the president should be as restricted as possible. An amendment proposed by James Madison that the president should be authorized to act only in the recess of Congress was passed; this was followed by another offered by Abraham Baldwin that would require information of an “insurrection” from an associate justice or federal district judge as a basis for presidential action. Finally, John F. Mercer proposed an additional section requiring the president to issue a proclamation in advance, which the House duly approved … .

  The powers delegated to the president … were thus circumscribed in many ways. The powers of the civil authorities must first be tried. The chief executive could not call the militia to enforce federal laws without a judicial certificate or to put down an insurrection within a state without application by the state government. In both cases, he had to issue a cease and desist proclamation first. Even with the judicial certificate, he could call forth the militia to enforce the laws on his own authority only when Congress was not in session, and he could not keep them in service for more than thirty days after the opening of a new session without legislative consent … . The act itself was to expire at the end of the first session of Congress after two years had elapsed.

• The safeguards conformed closely to the restrictions that George Mason, Luther Martin, and other Antifederalists had wanted written into the Constitution itself. The [1792 Act] represented a consensus of political thought at the time as to how far the president could be trusted to use military force wisely in dealing with domestic disturbances. It rested firmly on the premise that only militia, not regulars, should be employed in this activity.

Two years after enactment came the Whiskey Rebellion. Elizabeth Goitein and Joseph Nunn have written that:

In 1794, President George Washington invoked the 1792 Act to suppress the Whiskey Rebellion, an uprising in western Pennsylvania sparked by a federal tax on liquor production. By their actions during the crisis, Washington, the federal courts, and Congress all clearly evinced an understanding that the 1792 Act was the sole source of authority at play. No one suggested that the president might have independent authority to suppress such a rebellion, and Washington scrupulously abided by the requirements imposed by the Act. Thus, what [Robert Coakley] has called “[t]he great precedent for the use of federal military force in internal disturbances” was defined by congressional control.

The “Calling Forth Act” (1795)

In order to more easily understand the changes made by the Act of February 28, 1795 (1795 Act), “to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions; and to repeal the act now in force for those purposes”, what follows is the relevant language of the 1792 Act with language added in 1795 in bold and language removed in 1795 struck through:

• That whenever the [U.S.] shall be invaded, or be in imminent danger of case of invasion from any foreign nation or Indian tribe, it shall be lawful for the President … to call forth such number of militia of the state, or states, most convenient to the place of danger or scene of action, as he may judge necessary to repel such invasion, and to issue his orders for that purpose, to such officer or officers of the militia as he shall think proper. And in case of an insurrection in any state, against the government thereof, it shall be lawful for the President … on application of the legislature of such state, or of the executive, (when the legislature cannot be convened) to call forth such number of the militia of any other state or states, as may be applied for, or as he may judge sufficient to suppress such insurrection.

• That whenever the laws of the [U.S.] shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President … by an associate justice or the district judge, it shall be lawful for the President … to call forth the militia of such state, or of any other state or states, as may be necessary to suppress such combinations, and to cause the laws to be duly executed; . And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the [U.S.] be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session then next session of Congress.

• That whenever it may be necessary, in the judgment of the President, to use the military force hereby directed to be called forth, the President shall forthwith, and previous thereto, by proclamation, command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited time.

Robert Coakley explained that the 1795 Act reflected the Congress’s “approval of Washington’s conduct in the Whiskey Rebellion”. Congress:

[R]eenact[ed] the Calling Forth Act of 1792, making it permanent legislation, with certain revisions to enhance the president's powers … . By his actions in the Whiskey Rebellion, Washington had apparently dissipated the fears expressed in 1792 that these powers “could not with safety be entrusted to the President[.]” The Whiskey Rebellion thus resulted in the establishment of both a permanent law and a precedent for all future use of federal military force in domestic disorders.

Stephen Vladeck has written in the Yale Law Journal regarding the “laws of the [U.S.] shall be opposed” provision (the second bullet) that:

[W]hereas … the 1792 Act envisioned a multistage process … in which the President first had to receive judicial acknowledgment of a crisis requiring the militia, then could issue a proclamation ordering the insurgents to disperse, and then could call out the militia only after such a proclamation had gone unheeded … the 1795 Act authorized the President to act decisively, expeditiously, and, of most significance, unilaterally. Whereas the Second Congress had intended the delegation of such broad authority to sunset after three years and had required the intervention of a federal judge, the Third Congress made the delegation permanent and expanded the President's authority … removing the requirement of an antecedent court order and the bar on the use of out-of-state militiamen and changing the timing of the dispersal proclamation requirement.

Vladeck noted that “[t]he 1792 and 1795 Acts … clearly indicate the early thinking behind presidential power in military emergencies — the power was unquestionably Congress’s to delegate”, and Elizabeth Goitein and Joseph Nunn have written that “although the 1795 Act greatly enhanced the president’s power, it also served as a reminder that the authority to deploy troops domestically was “unquestionably Congress’s to delegate”.

The Insurrection Act (1807)

The Act of March 3, 1807 (1807 Act), “authorizing the employment of the land and naval forces of the United States, in cases of insurrections”, provided that:

That in all cases of insurrection, or obstruction to the laws, either of the [U.S.], or of any individual state or territory, where it is lawful for the President … 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 [U.S.], as shall be judged necessary, having first observed all the prerequisites of the law in that respect.

Elizabeth Goitein and Joseph Nunn explained that:

The 1792 and 1795 Acts closely followed the language of the Calling Forth Clause itself, and accordingly limited the president to relying on state militias. With the Insurrection Act of 1807 … Congress responded to domestic disturbances the country had experienced in the years since the Whiskey Rebellion by adding a single sentence … that authorized the president to also use federal regulars when suppressing insurrections or enforcing the law. In authorizing the use of federal troops, Congress had to rely on more than the Calling Forth Clause, which by its express terms only contemplates the use of the state militias. From the 1807 Act onward, Congress would overcome this limitation by calling on the totality of its war powers authorities under Article I, Section 8 when crafting domestic deployment legislation.

As Robert Coakley explained, the 1807 Act was all about the Burr Conspiracy:

Troubled by his lack of authority to use regulars in a domestic insurrection, which he really deemed the Burr conspiracy [in which former Vice President Aaron Burr allegedly “intended to entice the western states to leave the Union and join with hin as he colonized new lands – with the support of England”] to be, in mid-December 1806 [P]resident [Thomas Jefferson] sent the draft of a law permitting their use to a friendly congressman from Virginia … . The bill passed by Congress in March 1807 was phrased in language almost the same as Jefferson's draft, positive proof that it was Jefferson, the Republican, who dictated this reversal of … philosophy.

Stephen Vladeck has noted an intriguing quirk in the 1807 Act:

• The legislative history behind the [1807] Act is nonexistent, which is troubling because the Act clearly omitted invasion from those circumstances where the federal regulars could be used. But for the open hostility on the part of the Framers toward the use of a standing army in any circumstance, one might easily infer that Congress omitted invasions from the 1807 Act because it believed that the President inherently possessed the power to use federal troops to repel invaders. Yet this understanding raises the difficult question of why Congress would differentiate between repelling invaders and suppressing insurrections in 1807, especially since it did not so differentiate in 1799.

• [T]he omission of invasion from the 1807 Act a rather uncomfortable mystery.

He also pointed out that in the 1807 Act, “Congress[] depart[ed] from the [Constitution’s] First Militia Clause as the exclusive source of its authority to regulate the President's emergency military power, because the Clause said nothing about the use of federal troops…. [Congress] amalgamate[ed its] calling-forth power with its other Article I, Section 8 war powers.”

The 1861 Act

In order to more easily understand the changes made by the Act of July 29, 1861 (1861 Act), “to provide for the Suppression of Rebellion against and resistance to the Laws of the United States, and to amend the [1795 Act]”, what follows is the relevant language of the 1795 Act with language added in 1861 in bold and language removed in 1861 struck through:

• That whenever the [U.S.] shall be invaded, or be in imminent danger of case of invasion from any foreign nation or Indian tribe, it shall be lawful for the President … to call forth such number of militia of the state, or states, most convenient to the place of danger or scene of action, as he may judge necessary to repel such invasion, and to issue his orders for that purpose, to such officer or officers of the militia as he shall think proper. And in case of an insurrection in any state, against the government thereof, it shall be lawful for the President … on application of the legislature of such state, or of the executive, (when the legislature cannot be convened,) to call forth such number of the militia of any other state or states, as may be applied for, or as he may judge sufficient to suppress such insurrection.

• That whenever, by reason of unlawful obstructions, combinations or assemblages of persons, or rebellion against the authority of the Government of the [U.S.], it shall become impracticable, in the judgment of the President ... to enforce, by the ordinary course of judicial proceedings, the laws of the [U.S.] within any State or Territory the laws of the [U.S.] shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary States course of judicial proceedings, or by the powers vested in the marshals by this act, it shall be lawful for the President … to call forth the militia of such state, or of any other state or states, as may be necessary to suppress such combinations, and to cause the laws to be duly executed, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the then next session of Congress any or all the States of the Union, and to employ such parts of the land and naval forces of the [U.S.] as he may deem necessary to enforce the faithful execution of the laws of the [U.S.], or to suppress such rebellion in whatever State or Territory thereof the laws of the [U.S.] may be forcibly opposed, or the execution thereof forcibly obstructed.

• That whenever it may be necessary, in the judgment of the President, it may be necessary to use the military force hereby directed to be employed and called forth by him, the President shall forthwith, by proclamation, command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited time.

• [The] continuation in service [of the militia called into the service of the U.S.] shall not extend beyond sixty days after the commencement of the next regular session of Congress, unless Congress shall expressly provide by law therefor.

The Civil War was the obvious catalyst for the 1861 Act. Robert Coakley wrote that:

[The 1861 Act] vastly strengthened the president’s authority to use both militia and regulars to suppress insurrections and execute the laws of the Union … .

This was obviously a law designed to enable Lincoln to deal with the “rebellion” then existing in the Southern states. It added “rebellion” specifically to the obstructions and combinations that could be acted against … entrusted the decision to use military force to the “judgment of the President” whenever he deemed it “impracticable” to enforce the law by ordinary means … and omitted any reference specifically to the powers of the federal marshals under the act as a means of enforcement short of the use of military force … . The requirement for a proclamation was continued, but the president could, without congressional approval, maintain in federal service any militia he called for sixty days after the convening of the next session of Congress, rather than … thirty days.

Elizabeth Goitein and Joseph Nunn have written that:

When it comes to the substantive criteria for the deployment of federal forces, the text … is archaic, confusing, and vague. The circumstances that can trigger deployment authority … include the existence of “unlawful obstructions, combinations, or assemblages” that “make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.” Yet the statute fails to explain (1) what means of civilian law enforcement are included in, or excluded from, “the ordinary course of judicial proceedings,” (2) what constitutes an “obstruction,” “combination,” or “assemblage” — terms that are not defined in the statute, (3) what factors would render one of these occurrences “unlawful,” or (4) what level of interference or disruption would rise to the level of making it “impracticable” to enforce the laws.

Congress was very intentional in bolstering the president’s discretion. During House floor debate on July 16, 1861, U.S. Rep. John Bingham (R-Ohio) stated that the bill “declares that the President shall exercise this power when in his judgment the public exigencies require it” and Rep. Henry Burnett (D-Ky.) stated that the bill “makes the President … the judge of the circumstances and of the case in which the President may call out the militia”. Subsequently, Sen. Edmunds stated on the Senate floor on May 1, 1882, that the provision “authorize[s] the President to use … all the military force of the [U.S.], and the militia as well, to enforce the laws of the [U.S.] … if the state of disturbance … in his judgment, is such that the ordinary processes of judicial procedure are inadequate to accomplish the end.”

Goitein and Nunn have complained that the 1861 Act “weakened the few guardrails that Congress had preserved [in] the 1795 Act”. Banks likewise complained, writing that the legislation “was an extreme measure enacted in extraordinary times … [that] undermined the fundamental constitutional principle that federal military intervention should be undertaken only if civilian measures have failed.” He wrote that:

[It] eliminated a requirement put in place in 1792 that, before military force could be used, the powers of the federal marshals aided by members of the military as part of the posse comitatus had to be shown inadequate to quell the disturbance. Second, “rebellion” was lumped together with the lesser forms of disobedience, blurring the distinctions embedded in the Protection Clause and preserved by the early Congresses. Third, the President had merely to find it “impracticable” to enforce the laws by ordinary processes to trigger his discretion to militarize the disturbance, where before he had to find that the belligerent forces were “too powerful to be suppressed” by ordinary law enforcement mechanisms.

The 1871 Act

The Act of April 20, 1871 (1871 Act), “to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes”, added a wholly new provision to the Insurrection Act:

That in all cases where insurrection, domestic violence, unlawful combinations, or conspiracies in any State shall so obstruct or hinder the execution of the laws thereof, and of the [U.S.], as to deprive any portion or class of the people of such State of any of the rights, privileges, or immunities, or protection, named in the Constitution and secured by this act, and the constituted authorities of such State shall either be unable to protect, or shall, from any cause, fail in or refuse protection of the people in such rights, such facts shall be deemed a denial by such State of the equal protection of the laws to which they are entitled under the Constitution of the [U.S.]; and in all such cases, or whenever any such insurrection, violence, unlawful combination, or conspiracy shall oppose or obstruct the laws of the [U.S.] or the due execution thereof, or impede or obstruct the due course of justice under the same, it shall be lawful for the President, and it shall be his duty to take such measures, by the employment of the militia or the land and naval forces of the [U.S.], or of either, or by other means, as he may deem necessary for the suppression of such insurrection, domestic violence, or combinations; and any person who shall be arrested under the provisions of this and the preceding section shall be delivered to the marshal of the proper district, to be dealt with according to law.

Banks wrote that the 1871 Act “was aimed primarily at enforcing the Fourteenth Amendment and preventing acts of violence and intimidation by individuals against new black citizens”. He complained that “[l]ike the 1861 Act, [it] blurred the distinctions historically and constitutionally made between ‘insurrection’ and lesser forms of ‘domestic violence’” and that “In the extreme circumstances of the Civil War and Reconstruction, Congress lost sight of its constitutional compass regarding the domestic role of the military.” However, Banks might want to reconsider his constitutional compass. Keep in mind that, as Robert Coakley has told us, that “When … asked for instances where opposition to the laws did not come within the idea of an insurrection, Madison cited the case of ‘riots, to oppose the execution of the laws, which the civil power might not be sufficient to quell.’”

In any event, the bill was enacted through the perseverance of President Grant. U.S. Rep. Joseph Lewis (D-Ky.) stated during floor debate on April 1, 1871 that “The result of [President Grant’s] message [to Congress] is this bill.... [If it] is passed at all it will be the result of executive dictation, made to further the schemes of the ultra wing of the Republican party.”

President Grant’s March 23rd message to Congress stated:

A condition of affairs now exists in some of the States of the Union rendering life and property insecure and the carrying of the mails and the collection of the revenue dangerous. The proof that such a condition of affairs exists in some localities is now before the Senate. That the power to correct these evils is beyond the control of the State authorities I do not doubt; that the power of the Executive of the [U.S.], acting within the limits of existing laws, is sufficient for present emergencies is not clear.

Therefore I urgently recommend such legislation as in the judgment of Congress shall effectually secure life, liberty, and property and the enforcement of law in all parts of the [U.S.]

Presidential Discretion

Goitein and Nunn have written that:

• [The 1871 Act] allows the president to use military forces or “any other means” to “take such measures as he [deems] necessary” to enforce the law. The law quite literally places no limits on what actions the president can take under this provision. Although any action the president takes must comply with the U.S. Constitution — and although courts should not construe this broad language to permit violations of other statutes—the perils of handing the president a blank check of this nature are evident.

• [T]his is a boundless and highly dangerous delegation of authority — one that courts would be unlikely to uphold if interpreted literally.

And about the discretion afforded by the Insurrection Act as a whole, Goitein and Nunn have written that “As for the courts, the Insurrection Act commits the decision to deploy entirely to the president’s discretion, leaving no basis for judicial review of that decision.” And Mark Nevitt has written that “‘shall take such measures as he [deems] necessary’ … provides the president enormous discretion” and that “A Commander in Chief who disregards constitutional norms could treat [the provision] as a blank check for domestic military operations.”

The extraordinary degree of discretion that the Insurrection Act grants the president is mirrored in another federal statute. Section 212(f) of the Immigration and Nationality Act provides that:

Whenever the President finds that the entry of any aliens or of any class of aliens into the [U.S.] would be detrimental to the interests of the [U.S.], he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

In its 2018 decision in Trump v. Hawaii, the Supreme Court recognized the extraordinary degree of discretion in § 212(f):

• By its terms, §[212](f) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry (“[w]henever [he] finds that the entry” of aliens “would be detrimental” to the national interest); whose entry to suspend (“all aliens or any class of aliens”); for how long (“for such period as he shall deem necessary”); and on what conditions (“any restrictions he may deem to be appropriate”).

• The sole prerequisite set forth in §[212](f) is that the President “find[]” that the entry of the covered aliens “would be detrimental to the interests of the [U.S.]”

Significantly, the Court did not find this degree of discretion conferred upon the president to be problematic:

[T]he premise that §[212](f) not only requires the President to make a finding … but also to explain that finding with sufficient detail to enable judicial review … is questionable. See Webster v. Doe … ([Supreme Court] 1988) (concluding that a statute authorizing the CIA Director to terminate an employee when the Director “shall deem such termination necessary or advisable in the interests of the [U.S.]” forecloses “any meaningful judicial standard of review”). But even assuming that some form of review is appropriate, plaintiffs’ attacks on the sufficiency of the President’s findings cannot be sustained … .

[P]laintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere [of foreign and military affairs]. “Whether the President’s chosen method” of addressing perceived risks is justified from a policy perspective is “irrelevant to the scope of his [§[212](f)] authority.” [quoting the Court’s 1993 decision in Sale v. Haitian Centers Council, Inc.]

There is little reason to think that the Trump v. Hawaii Court would have been any more concerned about the degree of discretion conferred upon the president by the Insurrection Act.

The Meaning of Terms

As to the lack of clarity in many of the terms used in the 1871 Act, Joseph Nunn has written that:

Th[e 1871 Act’s] provision is so bafflingly broad that it cannot possibly mean what it says, or else it authorizes the president to use the military against any two people conspiring to break federal law.

Nothing in the text … defines “insurrection,” “rebellion,” “domestic violence,” or any of the other key terms used in setting forth the prerequisites for deployment.

As to the terms used in the Insurrection Act more broadly, Nunn and Goitein have written that:

• [I]t is unclear what is meant by the term “unlawful combination.” It is similarly unclear what is encompassed in the term “conspiracy,” and what would constitute “oppos[ition]” to “the execution of the laws” or “imped[ing] the course of justice under those laws.” If, however, the term “conspiracy” is accorded its modern legal definition, and if an attempt to prevent the law from being enforced — even an unsuccessful one — would qualify as “oppos[ing] the execution of the laws,” this provision would in theory allow the president to deploy the 82nd Airborne against two individuals plotting to intimidate a witness in a federal trial.

• How would a court assess whether the fraction of protesters who engaged in property crimes or violent acts constituted “unlawful assemblages,” or whether their actions made it “impracticable to enforce the laws of the [U.S.] ... by the ordinary course of judicial proceedings”?

• As for “unlawful obstructions, combinations, or assemblages,” or “conspirac[ies],” we do not believe that they provide useful limiting principles. These terms are archaic and undefined, and they potentially expand the reach of the Insurrection Act to include minor legal infractions.

Bob Bauer, professor of practice and distinguished scholar in residence at New York University School of Law, and Jack Goldsmith, professor at Harvard Law School and senior fellow at the Hoover Institution, have written that:

• The Insurrection Act empowers the president to order the armed forces and state militias into action within the [U.S.] and against American citizens in numerous ill-defined circumstances.

• [T]he act has very broad and imprecise triggers to its operation.

• Congress should … eliminate vague and obsolete terms like “assemblage” and “combination” [and] clearly define other terms like “insurrection” and “domestic violence”.

And Mark Nevitt has written that:

• How large does a “conspiracy” have to be? Is it a conspiracy that could trigger domestic deployment of the Marines if a handful of people conspire to violate federal law? That sounds ridiculous, but as written the statute provides few guidelines or guardrails. A Commander in Chief who disregards constitutional norms could treat … [the 1871 Act] as a blank check for domestic military operations.

• [Congress] should precisely define insurrection, domestic violence, unlawful combination, or conspiracy for purposes of the statute.

Goitein and Nunn have written that “Compounding the vagueness and overbreadth of the statute’s substantive criteria, [it] gives the president sole discretion, in most instances, to determine whether those criteria have been met”. Joseph Nunn on his own has written that “the law’s requirements are poorly explained and leave virtually everything up to the discretion of the president”. The combination of these two factors — vagueness and discretion — do indeed give a president an extraordinary amount of power in implementing the Insurrection Act.

1874 Act and Later Legislation

Goitein and Nunn have explained that:

In 1874, the scattered provisions of the 1795, 1807, 1861, and 1871 Acts were codified⁴ … [bringing] the last meaningful, substantive changes to what is today the Insurrection Act. First, Congress removed … the authorization for the president to deploy troops to repel invasions. The reasoning behind this move is unclear; it is possible that Congress saw the authorization as unnecessary in light of the Supreme Court’s 1862 decision in the Prize Cases finding that the president has inherent authority to repel “sudden attacks.”… Second, the last remaining safeguard from the original 1792 Act — the time limit on the use of the military to enforce the law, which already had been extended by the 1861 Act from thirty to sixty days after the start of Congress’s next session — was removed entirely.

They also noted that:

When [the 1871 Act provision] was moved from Title 50 to Title 10 during a 1956 recodification, Congress broke the provision into two sub-sections: (1) and (2). In doing so, Congress changed the meaning of the provision. It is unclear whether Congress intended that outcome, or if it simply sought to make the elaborate nineteenth century language more readable to a modern audience, because the legislative history is all but nonexistent.

The Insurrection Act Under Current Law

10 U.S.C. § 252 provides that:

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the [U.S.], make it impracticable to enforce the laws of the [U.S.] 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.

10 U.S.C. § 253 provides that:

The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—

(1) so hinders the execution of the laws of that State, and of the [U.S.] within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or

(2) opposes or obstructs the execution of the laws of the [U.S.] or impedes the course of justice under those laws.

In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

10 U.S.C. § 254 provides that:

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 to disperse and retire peaceably to their abodes within a limited time.

Leading Cases

Martin v. Mott (U.S. Supreme Court — 1827)

The Court in Martin v. Mott wrote that:

A free people are naturally jealous of the exercise of military power, and the power to call the militia into actual service is … a limited power, confined to cases of actual invasion or of imminent danger of invasion. If it be a limited power, the question arises by whom is the exigency to be judged of and decided? Is the President the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question, upon which every officer to whom the orders of the President are addressed, may decide for himself, and equally open to be contested by every militia-man who shall refuse to obey the orders of the President? We are all of opinion that the authority to decide whether the exigency has arisen belongs exclusively to the President, and that his decision is conclusive upon all other persons. We think that this construction necessarily results from the nature of the power itself and from the manifest object contemplated by the act of Congress. The power itself is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances which may be vital to the existence of the Union. A prompt and unhesitating obedience to orders is indispensable to the complete attainment of the object … . While subordinate officers or soldiers are pausing to consider whether they ought to obey or are scrupulously weighing the evidence of the facts upon which the commander in chief exercises the right to demand their services, the hostile enterprise may be accomplished without the means of resistance. [Emphasis added throughout.]

While the Court focused on the need to for subordinate officers and soldiers to follow the orders of the president, its conclusion was in the form of a general rule: the president’s “decision is conclusive upon all other persons”. That the Court meant its rule to be one of general applicability is reinforced by its statement that:

Whenever a statute gives a discretionary power to any person to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts. And in the present case we are all of opinion that such is the true construction of the act of 1795.

The Court dismissed concerns about potential abuse:

It is no answer that such a power may be abused, for there is no power which is not susceptible of abuse. The remedy for this, as well as for all other official misconduct, if it should occur, is to be found in the Constitution itself. In a free government, the danger must be remote, since in addition to the high qualities which the Executive must be presumed to possess, of public virtue, and honest devotion to the public interests, the frequency of elections, and the watchfulness of the representatives of the nation carry with them all the checks which can be useful to guard against usurpation or wanton tyranny.

Goitein and Nunn have written regarding Martin v. Mott that “For all practical purposes, courts have been cut out of the process. … [T]he [Supreme] Court concluded[ that] judges cannot review whether a president’s decision to invoke the Insurrection Act was justified by the circumstances.” Joseph Nunn on his own has written that:

The lack of clear standards within the Insurrection Act itself, combined with the Supreme Court’s ruling in Martin v. Mott, has created a situation where the president has almost limitless discretion to deploy federal troops in cases of civil unrest. Such unbounded authority to use the military domestically has always been dangerous. … The Insurrection Act [is] arguably the most potent of the president’s emergency powers.

Harold Hongju Koh, Sterling Professor of International Law at Yale Law School, and Michael Loughlin have written for the American Constitution Society that “Martin v. Mott pertained to a foreign invasion (the War of 1812), not a domestic insurrection. The Court did not discuss insurrections (or ‘combinations and conspiracies’) and instead repeatedly emphasized ‘foreign invasions.’” While this is certainly true, there is no reason to believe that the Court would apply a different rule to the president’s discretion in other domestic emergencies.

Luther v. Borden (U.S. Supreme Court — 1849)

Luther v. Borden involved “an action of trespass … for breaking and entering the plaintiff’s house.” The Court stated that:

The defendants justify upon the ground that large numbers of men were assembled in different parts of the State [of Rhode Island] for the purpose of overthrowing the [State] government by military force, and were actually levying war upon the State; that, in order to defend itself from this insurrection, the State was declared by competent authority to be under martial law; that the plaintiff was engaged in the insurrection; and that the defendants, being in the military service of the State, by command of their superior officer, broke and entered the house and searched the rooms for the plaintiff, who was supposed to be there concealed, in order to arrest him, doing as little damage as possible.

The Court ruled that:

By th[e 1795 Act], the power of deciding whether the exigency had arisen upon which the government of the [U.S.] is bound to interfere is given to the President. He is to act upon the application of the legislature or of the executive, and consequently he must determine what body of men constitute the legislature, and who is the governor, before he can act. … If there is an armed conflict like the one of which we are speaking, it is a case of domestic violence, and one of the parties must be in insurrection against the lawful government. And the President must, of necessity, decide which is the government and which party is unlawfully arrayed against it. [Emphasis added].

The Court again dismissed concerns about potential abuse:

It is said that this power in the President is dangerous to liberty, and may be abused. All power may be abused if placed in unworthy hands. But it would be difficult, we think, to point out any other hands in which this power would be more safe, and at the same time equally effectual. When citizens of the same State are in arms against each other, and the constituted authorities unable to execute the laws, the interposition of the [U.S.] must be prompt or it is of little value. The ordinary course of proceedings in courts of justice would be utterly unfit for the crisis. And the elevated office of the President, chosen as he is by the people of the [U.S.], and the high responsibility he could not fail to feel when acting in a case of so much moment, appear to furnish as strong safeguards against a wilful abuse of power as human prudence and foresight could well provide … .

A question very similar to this arose in the case of Martin v Mott … . The same principle applies to the case now before the court. Undoubtedly, if the President in exercising this power, shall fall into error or invade the rights of the people of the State, it would be in the power of Congress to apply the proper remedy. But the courts must administer the law as they find it.

Harold Hongju Koh and Michael Loughlin have argued that “Luther v. Borden involved the degree of executive discretion to intervene with military force once a state has requested this assistance; so all other discussion of the Insurrection Act was dicta.” While this is certainly true, there is no reason to believe that the Court would apply any different rule to the president’s discretion under the Insurrection Act where a state has not requested assistance.

In re Debs (U.S. Supreme Court — 1895)

Attorney General Brownell wrote that “[A] Federal district court issued a sweeping order enjoining strikers in the Pullman company riots at Chicago in 1894. When the mobs continued their lawless course, Federal troops, both regular and National Guardsmen, were dispatched to the city and actively intervened to restore order.” The case reached the Supreme Court in In re Debs. The Court wrote that:

The case presented … is this: the United States, finding that the interstate transportation of persons and property, as well as the carriage of the mails, is forcibly obstructed, and that a combination and conspiracy exists to subject the control of such transportation to the will of the conspirators, applied to one of their courts … for an injunction to restrain such obstruction and prevent carrying into effect such conspiracy, … Are the relations of the general government to interstate commerce and the transportation of the mails such as authorize a direct interference to prevent a forcible obstruction thereof?

What are the relations of the general government to interstate commerce and the transportation of the mails? They are those of direct supervision, control, and management.

The Court explained that:

• Among the powers expressly given to the national government are the control of interstate commerce and the creation and management of a post office system for the nation. Article I, section 8, of the Constitution provides that “the Congress shall have power ... to regulate commerce with foreign nations and among the several States, and with the Indian tribes ... [and] to establish post offices and post roads.”

• Under the power vested in Congress to establish post offices and post roads, Congress has, by a mass of legislation, established the great post office system of the country, with all its detail of organization, its machinery for the transaction of business, defining what shall be carried and what not, and the prices of carriage, and also prescribing penalties for all offences against it.

The Court concluded that:

As, under the Constitution, power over interstate commerce and the transportation of the mails is vested in the national government, and Congress, by virtue of such grant, has assumed actual and direct control, it follows that the national government may prevent any unlawful and forcible interference therewith.

The Court then pondered “But how shall this be accomplished?” It stated that “Doubtless it is within the competency of Congress to prescribe by legislation that any interference with these matters shall be offences against the [U.S.], and prosecuted and punished by indictment in the proper courts.” It then asked “But is that the only remedy? Have the vast interests of the nation in interstate commerce and in the transportation of the mails no other protection than lies in the possible punishment of those who interfere with it?”

The Court concluded that:

To ask the question is to answer it … . If all the inhabitants of a State, or even a great body of them, should combine to obstruct interstate commerce or the transportation of the mails, prosecutions for such offences had in such a community would be doomed in advance to failure. And if the certainty of such failure was known, and the national government had no other way to enforce the freedom of interstate commerce and the transportation of the mails than by prosecution and punishment for interference therewith, the whole interests of the nation in these respects would be at the absolute mercy of a portion of the inhabitants of that single State.

But there is no such impotency in the national government. The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the Constitution to its care. The strong arm of the national government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails. If the emergency arises, the army of the Nation, and all its militia, are at the service of the Nation to compel obedience to its laws. [Emphasis added.]

It must be borne in mind that this bill was not simply to enjoin a mob and mob violence … . The right of any laborer, or any number of laborers, to quit work was not challenged. The scope and purpose of the bill was only to restrain forcible obstructions of the highways along which interstate commerce travels and the mails are carried.

The Court held that:

[To the government of the United States] is committed power over interstate commerce and the transmission of the mail … in the exercise of those powers, it is competent for the nation to remove all obstructions upon highways, natural or artificial, to the passage of interstate commerce or the carrying of the mail; that … it may be competent for the government (through the executive branch and in the use of the entire executive power of the nation) to forcibly remove all such obstructions … the complaint filed in this case clearly showed an existing obstruction of artificial highways for the passage of interstate commerce and the transmission of the mail — an obstruction not only temporarily existing, but threatening to continue.

Harold Hongju Koh and Michael Loughlin have written that “In Re Debs did not involve President Cleveland invoking the Insurrection Act; the Court did not treat it as an Insurrection Act case; and the President was enforcing an injunction ordered by a federal court, not acting on his own against a general claim of ‘widespread public disorder.’” While that is true, the reasoning of the Court provides a powerful argument for the propriety of the use of the military under the Insurrection Act to protect the freedom of interstate commerce and the transportation of the mails, and, for that matter, to protect all the other “rights entrusted by the Constitution to [the executive branch’s] care”.

Sterling v. Constantin (U.S. Supreme Court — 1932)

The Court in Sterling v. Constantin hinted at possible limits to the president’s discretion under the Insurrection Act. As a preliminary matter, the Court approvingly quoted Martin v. Mott and made clear that the import of the earlier case was not limited to instances of invasion:

By virtue of his duty to “cause the laws to be faithfully executed,” the executive is appropriately vested with the discretion to determine whether an exigency requiring military aid for that purpose has arisen. His decision to that effect is conclusive. That construction, this Court has said, in speaking of the power constitutionally conferred by the Congress upon the President to call the militia into actual service, “necessarily results from the nature of the power itself, and from the manifest object contemplated.” The power “is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances which may be vital to the existence of the Union.” [Quoting Martin v. Mott].

The Court then concluded that:

Similar effect, for corresponding reasons, is ascribed to the exercise by the Governor of a state of his discretion in calling out its military forces to suppress insurrection and disorder. Luther v. Borden…. The nature of the power also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order, for, without such liberty to make immediate decisions, the power itself would be useless. Such measures, conceived in good faith, in the face of the emergency, and directly related to the quelling of the disorder or the prevention of its continuance, fall within the discretion of the executive in the exercise of his authority to maintain peace. Thus, in Moyer v. Peabody … the [Supreme] Court [in 1909] sustained the authority of the Governor to hold in custody temporarily one whom he believed to be engaged in fomenting disorder, and right of recovery against the Governor for the imprisonment was denied. The Court said that, as the Governor “may kill persons who resist,” he “may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution to prevent the exercise of hostile power. So long as such arrests are made in good faith and in the honest belief that they are needed in order to head the insurrection off, the Governor is the final judge, and cannot be subjected to an action after he is out of office on the ground that he had not reasonable ground for his belief.” [Emphasis added.]

The Court in Moyer v. Peabody had also stated that “It is not alleged that his judgment was not honest, if that be material, or that the plaintiff was detained after fears of the insurrection were at an end.”

The Court in Sterling went on to conclude that:

It does not follow from the fact that the executive has this range of discretion, deemed to be a necessary incident of his power to suppress disorder, that every sort of action the Governor may take, no matter how unjustified by the exigency or subversive of private right and the jurisdiction of the courts, otherwise available, is conclusively supported by mere executive fiat. The contrary is well established. What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions. Thus, in the theater of actual war, there are occasions in which private property may be taken or destroyed to prevent it from falling into the hands of the enemy or may be impressed into the public service, and the officer may show the necessity in defending an action for trespass. “But we are clearly of opinion,” said the Court, speaking through Chief Justice Taney, “that, in all of these cases, the danger must be immediate and impending; or the necessity urgent for the public service, such as will not admit of delay, and where the action of the civil authority would be too late in providing the means which the occasion calls for.... Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified.” [quoting the Supreme Court’s 1851 decision in Mitchell v. Harmony]. … There is no ground for the conclusion that military orders in the case of insurrection have any higher sanction or confer any greater immunity. [Emphasis added.]

Elizabeth Goitein and Joseph Nunn have written that the decision “implied that there might be an exception” to the president’s absolute discretion under the Insurrection Act “for situations in which the president acted in bad faith”. However, while the Court’s reasoning, if applied to the Insurrection Act, seems to imply some limits to the president’s discretion, the Sterling Court was not addressing the Insurrection Act. Furthermore, the Court clarified that the question it was addressing was “not of the power of the Governor to proclaim that a state of insurrection, or tumult, or riot, or breach of the peace exists, and that it is necessary to call military force to the aid of the civil power”. Nor did it “relate to the quelling of disturbances and the overcoming of unlawful resistance to civil authority”. Rather, it was “simply with respect to the Governor’s attempt to regulate by executive order the lawful use of complainants’ properties in the production of oil”.

It is also important to note, as Joseph Nunn has written, that the decision clarified that “courts may still review the lawfulness of the military’s actions once deployed. In other words, federal troops are not free to violate other laws or trample on constitutional rights just because the president has invoked the Insurrection Act.”

Insurrection Act Good Works

Nunn and Goitein have concluded that “In the 230 years since [the 1792 Act], the Insurrection Act has been invoked in response to 30 crises. Among these were, as previously mentioned, the Whiskey Rebellion. They wrote elsewhere that:

Over time, the range of purposes for which the Insurrection Act has been used has expanded. In the late nineteenth and early twentieth centuries, Presidents Rutherford B. Hayes, Grover Cleveland, Woodrow Wilson, and Warren G. Harding each deployed troops under the Act to intervene in labor disputes, including the Great Railroad Strike of 1877, the Pullman Strike, and the Colorado Coalfield War.

Racial Justice

As David French has realized, when the Insurrection Act “has been used, it’s been used for legitimate purposes”. Most importantly, he notes that “it was used repeatedly to suppress racist violence in the South during the Reconstruction era and the civil rights movement”.

Goitein and Nunn have written that:

• In the early 1870s … President Ulysses S. Grant used the new powers Congress had granted him … to suppress the terrorist insurgency waged by the first incarnation of the Ku Klux Klan. For the remainder of the decade, Grant repeatedly invoked the Act in an ultimately unsuccessful effort to prevent the violent white supremacist “Redeemer” movement from overthrowing Reconstruction governments in several former Confederate states.

• [P]residents[ Eisenhower’s, Kennedy’s, and Johnson’s] decisive actions to protect African Americans’ civil rights during the Little Rock crisis, the Ole Miss Riot, and the so-called Stand in the Schoolhouse Door in Alabama … followed a tradition, one that can be traced to President Grant’s suppression of the Ku Klux Klan in the 1870s, of using the Act to protect marginalized communities when local authorities are unable or unwilling to do so.

As Goitein and Nunn explained:

After the Civil War, the first Ku Klux Klan and other white supremacist groups carried out a terrorist insurgency across much of the former Confederacy. The federal government initially struggled to respond to this campaign of violence due to limited post-war resources and the inability or unwillingness of local authorities to bring the perpetrators to justice. In April 1871, Congress amended the Insurrection Act to grant the president new, expansive powers designed specifically to combat the KKK — including the power to suspend the writ of habeas corpus, allowing federal authorities to arrest individuals under the Act and hold them without charge. (The legislative grant of authority to suspend habeas expired after one year…) Mindful of still limited federal resources, President Ulysses Grant chose to make an example of the Klan in one of their strongholds, South Carolina. On October 17, after issuing multiple warning proclamations under the revised Insurrection Act, Grant invoked his new authorities and both deployed troops to South Carolina.

Subsequently, as they wrote:

• The results of the 1872 gubernatorial election in Louisiana were contested between white supremacist Democrats and pro-Reconstruction Republicans, which threw the state’s politics into turmoil and led to widespread violence, especially in rural areas. The violence reached its apogee on April 13, 1873 in Colfax, Louisiana, when a heavily armed white mob massacred between 60 and 150 black militiamen after they surrendered … . A month after the Colfax massacre, President Grant issued a proclamation under the Insurrection Act, calling on the belligerents in Louisiana to disperse. However, no additional federal troops were deployed other than those already stationed in Louisiana as part of Reconstruction.

• Continued disputes over the 1872 gubernatorial election in Louisiana culminated in a violent white supremacist coup d’état in New Orleans — then the state capital — in 1874. President Grant invoked the Insurrection Act and deployed troops, who drove the insurrectionists out of the city and reinstated the ousted governor. However, the insurgents established their own competing government, which effectively controlled much of Louisiana outside of New Orleans for the next three years. This situation persisted until the federal troops protecting New Orleans were withdrawn as part of the Compromise of 1877, and white supremacist “Redeemers” fully took control of the state.

• In early December 1874, the newly elected black sheriff of Vicksburg, Mississippi, Peter Crosby, was indicted on fabricated charges and deposed by a white mob. When black citizens organized an effort to reinstate Crosby, white mobs attacked and killed dozens of them. After the massacre, President Grant invoked the Insurrection Act and deployed troops to Vicksburg to prevent further violence and reinstate Crosby.

• In advance of the 1876 South Carolina gubernatorial election, thousands of white supremacists in South Carolina who opposed Reconstruction organized into heavily armed paramilitary groups known as “rifle clubs.” Worried that these groups would interfere with the election and were too large to be controlled with the state militia, the governor appealed to President Grant for military aid. Grant issued a proclamation under the Insurrection Act ordering the clubs to disperse, and sent additional federal troops to South Carolina to reinforce those already stationed there. These troops kept the peace after the election, remaining until all federal forces were withdrawn from the former Confederacy as part of the Compromise of 1877.

• Three years after the Supreme Court, in Brown v. Board of Education, struck down the “separate but equal” doctrine that underpinned racial segregation, the governor of Arkansas deployed the Arkansas National Guard to stop nine African-American students from enrolling at Central High School in the state capital of Little Rock. President Dwight Eisenhower invoked the Insurrection Act, federalized the Arkansas National Guard and ordered it to stand down, and deployed the Army's 101st Airborne Division to protect the students as they attended class.

Attorney General Herbert Brownell, Jr. addressed the Little Rock crisis in an opinion to President Eisenhower on the “President’s Power to Use Federal Troops to Suppress Resistance to Enforcement of Federal Court Orders – Little Rock Arkansas”:

• As applied to the Little Rock events, I advised you that unlawful obstructions, combinations, or assemblages made it impracticable to enforce the laws of the [U.S.] … by the ordinary course of judicial proceedings. … The facts upon which these conclusions were based … included an account of the determined group of hundreds of men and women bent upon overpowering the local peace officers, the several incidents of violence with their very real and discernible trend toward a larger-scale inflammatory assault, the action of the Mayor and local authorities in ordering the withdrawal of the Negro students so as to appease the unruly mob, the admission of local authorities that such peace officers as they could command were unable to cope with the disorderly assemblage, and the indifference or refusal of the Governor … to supply a sufficient force to quell the lawless movement.

  I also advised you that the local strength of the [U.S.] Marshal was insufficient to achieve enforcement of the order of the [U.S.] District Court, and that, because of the local situation and the need for timely action, it would not have been reasonable, or effective in the circumstances, to attempt to have the Marshal enlist the support of the citizenry to carry out the court order … .

  These facts were still present on the day after issuance of the proclamation. The street mobs reassembled. The Mayor of Little Rock wired you on September 24, as follows:

  “THE IMMEDIATE NEED FOR FEDERAL TROOPS IS URGENT. THE MOB IS MUCH LARGER IN NUMBERS AT 8 AM THAN AT ANY TIME YESTERDAY PEOPLE ARE CONVERGING ON THE SCENE FROM ALL DIRECTIONS MOB IS ARMED AND ENGAGING IN FISTICUFFS AND OTHER ACTS OF VIOLENCE. SITUATION IS OUT OF CONTROL AND POLICE CANNOT DISPERSE THE MOB I AM PLEADING TO YOU AS PRESIDENT … IN THE INTEREST OF HUMANITY LAW AND ORDER AND THE CAUSE OF DEMOCRACY WORLD WIDE TO PROVIDE THE NECESSARY FEDERAL TROOPS WITHIN SEVERAL HOURS. ACTION BY YOU WILL RESTORE PEACE AND ORDER AND COMPLIANCE WITH YOUR PROCLAMATION.”

  Thereupon you ordered the use of [U.S.] troops and the federalization of the Arkansas National Guard.

  This, in sum, was in my view — and I so advised you — a situation which compelled action by the Chief Executive under provisions of law designed to uphold the strength of law enforcement and the standing and authority of the courts.

  I also advised you that the execution of the laws of Arkansas and of the [U.S.] within the State of Arkansas was being hindered by unlawful combinations so as to deprive people in that State of a right, privilege, immunity, or protection named in the Constitution and secured by law, and that the appropriate State authorities were unable, unwilling, or failed to protect that right, privilege, immunity, or to give that protection. The requisites of [the Insurrection Act] were met.

• I advised you that your authority to dispatch Federal troops to Little Rock would be predicated upon express statutory right [through the Insurrection Act] and, therefore, would be within the exception contained in the [PCA].

Post-Little Rock, as Goitein and Nunn described:

• Ole Miss Riot. In the fall of 1962, James Meredith became the first African-American student to be admitted to the University of Mississippi. At the end of September, President John F. Kennedy staged several hundred U.S. Marshals, Bureau of Prisons guards, and Border Patrol agents to protect Meredith as he enrolled. On September 30, a violent, heavily armed mob of white students, residents of Oxford, and others — incited by the governor of Mississippi — besieged Meredith, the federal agents, and multiple officials inside campus buildings. The siege continued through the night, with two people murdered and more than 300 injured, until several thousand federal troops deployed by President Kennedy under the Insurrection Act arrived to suppress the riot.

• Stand in the Schoolhouse Door. The governor of Alabama, with an escort of state police, sought to physically block two African-American students, James Hood and Vivian Malone, from enrolling at the University of Alabama. At the request of the U.S. Marshals escorting Hood and Malone, President Kennedy invoked the Insurrection Act, federalized the Alabama National Guard, and deployed it to protect the students. Confronted by the commander of the Guardsmen, the governor finally backed down and allowed Hood and Malone to register.

• The governor of Alabama had deployed the Alabama National Guard to stop African-American students from attending all-white public schools across many cities in Alabama. President Kennedy invoked the Insurrection Act, federalized the Alabama Guard, and ordered it stand down.

• President Lyndon Johnson invoked the Insurrection Act and federalized the Alabama National Guard, ordering them to protect civil rights marchers as they traveled from Selma to Montgomery, Alabama.

Protecting Immigrants

The Insurrection Act has also been utilized to protect aliens, President Grover Cleveland using it in 1885 and 1886 to send federal troops to protect Chinese miners during deadly anti-Chinese riots. Goitein and Nunn wrote that:

• At the request of the governor of Washington Territory, President Grover Cleveland invoked the Insurrection Act in response to the Tacoma Riot of 1885 and similar events in Seattle, during which Chinese immigrant residents of the two cities were forcibly driven out by armed white mobs. Cleveland took no direct action with respect to Tacoma, where the city's entire Chinese immigrant population had already been expelled and their homes and business razed, but deployed troops to Seattle to quell the rioters and protect the remaining Chinese residents.

• In response to the Seattle Riot of 1886, President Cleveland again deployed troops to Seattle to protect Chinese immigrants from violent white mobs attempting to expel them from the city.

As more fulsomely described in Federal Aid in Domestic Disturbances 1787-1903, prepared by the U.S. Army’s Adjutant General’s Office in 1903:

Rock Springs, a small mining town … is one of several points along their line where the Union Pacific own and operate mines for the purpose of supplying coal. … The company employed on the 2d of September, 1885, about 500 miners, of whom 150 were white and 300 Chinese, and there were in the town perhaps 100 idle white miners. On that date the white miners, aided by the loafers about town, all fully armed, suddenly attacked the unarmed Chinese both in and outside the mines, killing all who resisted, driving the others into the mountains, and burning and plundering their dwellings. About 25 to 30 Chinese were killed, every Chinese house in the town was burned, and of those who had fled to the hills some 50 perished from wounds, starvation, and exposure. … Immediately upon receipt of the intelligence, the governor of Wyoming … telegraphed the Secretary of War that the county authorities were powerless; that the Territory had no militia, and that he had applied to General Howard … for military aid. On the 3d he made a similar appeal to the President, adding that he believed immediate assistance imperative to preserve life and property. On receipt of this he was advised by telegraph that before action could be had in the matter he must first make personal application to the President in the manner indicated by the Constitution and statutes, but that in the meantime, in order that the public interests not suffer, the Secretary of War had ordered two companies to Rock Springs to prevent any interruption to the [U.S.] mails or the routes over which they were carried.⁵

On the afternoon of the 7th General Shofield was advised that in view … of the representation of the Governor … that the civil powers of the Territory were unable to protect life and property and preserve the peace in certain localities, the President directed that a suitable military force be sent to the points where violence existed or was threatened; that if necessity actually existed for the employment of that force in protecting life and property and aiding the civil authorities in preserving the peace and in the arrest of those committing offenses against the laws, he was authorized to use it, but that care should be taken that the military force was not needlessly employed. On the 8th, the railroad company having decided to take the Chinese back to Rock Springs and reopen the mines … [S]ix companies of the Ninth Infantry … were ordered to Evanston, and on the 9th four of those companies … acted as an escort to a force of some 700 Chinese laborers and minors to Rock Springs, where they arrived on the afternoon of that date without incident. The governor promptly telegraphed his thanks for the prompt assistance rendered.⁶

Criticism of the Insurrection Act

In 1871

Anti-Reconstruction members of Congress, often apologists for slavery, vociferously opposed the strengthening of the Insurrection Act in 1871 during congressional debate, making many preposterous and melodramatic accusations.

Regarding their views toward slavery and Blacks, apologist for slavery Rep. Joseph Lewis proclaimed during House floor debate on April 1, 1871 that:

• More than $3,000,000,000 of slave property was suddenly annihilated; four million negroes, hitherto dependent upon their masters for support, were suddenly thrown upon their own resources. … Negro and the white race, previously holding the relation of mutual support and protection and living in harmony and peace, were suddenly confronted as competitors and rivals.

• The [negroes’] fate in this country can only be prevented being the same as the Indian by fostering friendship and concord between them and those of the white race whose fortune has compelled them to live under the same Government and in the same society with them.

On April 3rd, U.S. Rep. Robert Roosevelt (D-N.Y.) proclaimed on the House floor that:

[T]he Democracy … sent their ships across three thousand miles of ocean to the realms of barbarous Africa, in order to import thence a gentleman who, in his native state, had not attained to any great degree of cultivation or happiness, and whose future was worse than precarious[.] It was the great Democracy who, to bring the negro from that unexplored continent, incurred the perils of the “vasty deep,” who with him endured the sufferings of the “middle passage[]”. ... When he arrived in this country, it was the Democracy who introduced him into cultivated and refined associations, who offered to him all the advantages that the whites had acquired in many years of study, who made him acquainted thoroughly … with the duty, the dignity, the nobility of labor, and who, in order that he might not grow too proud, in order that he might not lose amid the advantages and attractions of civilization that humility which is the crowning quality of Christianity, set him to labor, not for himself, but for them.

During House floor debate on April 1, 1871, U.S. Rep. Hawley, stated with derision toward opponents of the 1871 Act that “We are told … that if the power be granted to the President … proposed by this bill he will be a despot, a dictator; that he will override the liberties of this great people.” Many such accusations of despotism were made on the floor that day. Rep. Lewis stated:

• [T]his bill now under consideration is one of unusual harshness and cruelty, and aimed at my own as well as the southern States.

• [H]ow [can] this House … now justify itself in passing this measure, the most dangerous and revolutionary in its character of any yet enacted?

• This bill is but a continuation of the series of acts passed by Congress since the war, forming a code of laws, in my judgment, without example for injustice and intolerance in any representative Government … in advance of any step yet taken toward the final result contemplated … nothing less than a consolidated despotism here at the capital … .

  [T]his bill is a systematic and apparently studied attack upon our form of government. It destroys essential and necessary safeguards to the life and liberty of the citizen. It ignores the sovereign rights and nullifies the laws of the States … . lodges in the hands of the President powers that cannot be safely entrusted to him or any other one man.

• If it be tested by the theory upon which the Government is built, as defined by the sages who made the Constitution and practiced by our fathers, it is pernicious. If it be tested by the common understanding of the people, they revolt at such despotic power over the citizen, as is conferred by it and such a shameless assimilation to monarchy as it presents. It is only when tested by the tenets and professions of the ultra Republicans that it finds favor; for their professions partake rather of cant than the true ring of patriotism, and their tenets lead us away from the God of justice, wisdom, and charity to the Moloch of Radicalism.

• [T]o continue a law that antagonizes [the Principles underlying the Constitution] it is sheer wickedness.

  [This bill] subverts … all [of the purposes of Government enumerated in the preamble to the Constitution] … instead of securing the blessings of liberty, it makes over us all an irresponsible despotism.

  If, sir, the effect of this bill is to be the same as other measures of a similar character heretofore enacted and enforced, then we know from experience it will breed evil and nothing but evil.

• Just and fair-minded men everywhere will unite to drive from power a party that in the first instance committed the blunder, if not crime, of fastening upon the country an un-constitutional, anti-republican, and vindictive code of laws, and continuing it after experience has shown not only its cruelty and oppressiveness, but its utter failure to accomplish any good.

Rep. Edward Rice (D-Ill.) stated:

• The Representatives of the people are to be passive spectators of this imperial display of power until the time for the regular sessions of Congress.

• If there is a real necessity for this measure; if life, liberty, and property can no longer be protected by civil law in this country; if, indeed, it is necessary now to lay the foundation for the government by the sword and the bayonet in all the States of this Union, with no limit but the executive will, then is our republican form of government a failure, and to pass this bill is to confess it before all the world.

• This bill and our system of government cannot both stand; the one must be rejected or the other must be destroyed.

• [T]his [is a] hydra headed monster.

On April 3, 1871, Rep. Roosevelt stated that the legislation “convert[s the 14th Amendment] into a weapon for the destruction of the liberties of all the people!” And Rep. Thomas Kinsella (D-N.Y.) stated:

• [L]ifting up combinations of two, perhaps tipsy, individuals into conspiracies against the [U.S.] Government … . This bill makes it lawful for the President … to call out the militia or the Army and Navy … or “to take such other steps as he may deem necessary;” a clause so sweeping that it would justify the President in imitating the example of the patriotic President [Ramón Buenaventura] Baez [of the Dominican Republic, whose “rule was characterized by corruption and governing for the benefit of his personal fortune”], who proposes to sell his country outright in order to quiet his subjects and to collect the back salaries of himself, his relations, and, I have no doubt, his wife's relations.

• [T]he iniquity of this measure is but yet feebly realized by the country, by the honest yeomen of the land, who love the liberties their fathers won for them, and who are not yet aware of the perils which surround them here. Am I expected to return to my district and tell my constituents that I have placed all the safeguards which protect them in their lives and liberty at the “discretion” of one man. There are men to whose effrontery and brazen audacity I will not venture to set a limit. They may go from here and attempt to show that they have not bartered away the public liberties to subserve a partisan end…. you, sir [Mr. Speaker], will not go back to your Green Mountain State and tell … that their guarantees for freedom henceforth is the “discretion” of a President. … you cannot, you dare not, go home and tell your people of any party that you consented to bring constitutional government to an end … inspired by bitterness and hate. … [I]t is not possible for the perverse ingenuity of man to frame a measure in more direct antagonism to our whole system of government, or to the Constitution in which it is crystallized, than this bill is. The bill subverts at a blow all the safeguards of the liberties of the people and the rights of the States, in which the fathers believed they had secured the best and most enduring guarantees for these liberties.

• If the terms of this bill can be enforced as law our form of government is at an end, and the system of confederated republicanism is dead beyond the hope of resurrection.

In the Present Day

Despite the survival of our constitutional democracy in the century and a half since these accusations were made, despite the fact that presidents both Republican and Democrat have relied on the Insurrection Act to safeguard the nation, protect the lives of both citizens and noncitizens, allow the federal government to carry out its functions, safeguard the rights of freed slaves during post-Civil War Reconstruction and their descendants during the 20^th century’s civil rights struggles, and safeguard interstate commerce, many current commentators continue to vociferously oppose the Act and make similar preposterous accusations.

David French has written that:

• There is a land mine embedded in the [U.S.] Code, one that Donald Trump, if re-elected president, could use to destroy our republic.

• The Insurrection Act[’s] … flaws would give Trump enormous latitude to wield the staggering power of the state against his domestic political enemies.

• The authority granted by the act … is remarkably broad, and oversight is virtually nonexistent.

• [T]he act gets worse, much worse. The next section takes the gloves off, giving the president the ability to call out the National Guard or the regular army…. [n]ote the key language: “whenever the president considers.” That means deployment is up to him and to him alone.

  The section after that does much same thing. … This broad grant of power makes the Insurrection Act far more immediately dangerous than many other threatened Trump actions. … Judicial review can blunt many of Trump’s worst initiatives, but there’s no such obvious check on the use of his power under the act.

• There is still time … to take this terrible tool out of Trump’s potential hands.

• An angry, vindictive president could send regular army troops straight into American cities at the first hint of protest.

  When you read misguided laws like the Insurrection Act, you realize that the long survival of the American republic is partly a result of good fortune. Congress, acting over decades, has gradually granted presidents far too much power, foolishly trusting them to act with at least a minimal level of integrity and decency.

• It’s time to take from presidents a power they never should have possessed. No man or woman should be able to unilaterally deploy the armed forces to control America’s streets.

Elizabeth Goitein and Joseph Nunn have written that “we continue to tempt fate that a president might one day use these powers to try to do away with democracy for good”, and that:

• The vague and broad criteria for invoking the Act, combined with the lack of any provision for judicial or congressional review, render it ripe for abuse in ways that could directly threaten democracy.

• In the wrong hands, limitless discretion to deploy the military as a domestic police force could be used as a tool of oppression.

• The Insurrection Act falls short in every respect. Its language is vague and archaic, creating confusion about what the law allows. It gives the president sole discretion to interpret those terms and to deploy the U.S. armed forces as a domestic police force. It envisions no oversight role for Congress or the courts. This situation is … dangerous for our democracy. … [T]he Act is ripe for abuse.

• The Insurrection Act represents an extraordinary delegation of authority, granting the president one of the powers that the founders most feared: the ability to turn a standing army inward against the people. It is critical that any such authority speak clearly, extend no further than necessary, and include safeguards against abuse — including mechanisms by which the other branches of government may serve as checks. The Insurrection Act conforms to none of these principles.

Professors Bob Bauer and Jack Goldsmith have written that:

• The Insurrection Act is a dangerous, centuries-old federal statute that authorizes the president, with few restraints, to deploy the U.S. military inside the [U.S.] to suppress threats the president perceives to the constitutional order.

• Democrats and Republicans should want to deny any president unchecked authority to use the military in the homeland.

• There is no serious dispute, on the merits, that the Insurrection Act gives any president far too much unchecked power. It is hard for anyone to argue that a president should be able to unleash U.S. troops or state militias without any accountability beyond public opinion or impeachment.

• Congress should … narrow the president’s seemingly boundless discretion to determine when the act’s triggers are satisfied.

• The primary and urgent task is to bring the core of the president’s promiscuous Insurrection Act authority to heel.

It might be time for these generally, but not uniformly, liberal commentators to reconsider the fear and contempt with which they view the Insurrection Act, which has been such a force for good for over two hundred years, rather than continue to exalt the racist Posse Comitatus Act.

IV. Other Relevant Legislation

The 1981 Act

The Department of Defense Authorization Act, 1982 added a new chapter 18 to title 10 titled “Military Cooperation with Civilian Law Enforcement Officials”. The legislation’s provisions are found in current law at 10 U.S.C § 271 (“[u]se of information collected during military operations”), § 272 (“[u]se of military equipment and facilities”), § 273 (“[t]raining and advising civilian law enforcement officials”), § 274 (“[m]aintenance and operation of equipment”), § 284 (“[s]upport for counterdrug activities and activities to counter transnational organized crime”), and other places.

The House Judiciary Committee’s report explained that:

The first four sections clarify existing practices of cooperation between the military and civilian law enforcement authorities. Current interpretation of the [PCA] already permits all of the activity addressed by these four sections. However, some court interpretations of the Act are ambiguous, and because the Act was enacted so long ago, there is some potential for misinterpretation of it. The Committee therefore concluded that existing practice should be codified to eliminate any risk of error. The final section of the bill, proposed section 375, represents a slight and narrow departure from the principles of the [PCA] insofar as it authorizes the occasional use of military personnel to operate sophisticated equipment on loan to civilian drug law enforcement agencies for specific law enforcement operations.⁷

Notably, § 275 provides that:

The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.

The House Judiciary Committee’s report explained that:

The Committee considered and rejected, for several reasons, a provision in the bill as reported by the Armed Services Committee which would grant arrest and seizure authority to military personnel with respect to civilian drug law enforcement. First, the Committee received no support for such authority from any of the primarily affected Federal agencies: [DOJ and DOD] and the United States Customs Service and Coast Guard. Second, even if the agencies had made such a request, there was no hearing record to answer the numerous questions posed by a grant of such authority. These questions ranged from the potential foreign policy implications of using troops to enforce civilian laws near American borders or on the high seas to concerns about the training requirements (and their costs) that would be necessary.

In addition, there was concern about the potential for conflict between civilian law enforcement, control and the effective operation of a military unit's command structure. The Committee thus limited the deviation from [the PCA] to drug law cases. It found that only in the area of drug law enforcement had a strong enough argument had been made to support even the passive use of military personnel to operate and maintain equipment on loan to civilians … .

Most importantly, the Committee rejected the granting of arrest and seizure authority to the military because it believes that such a grant of authority would fundamentally alter the nature of the relationship between the military and civilian society. Any attempted modification in this country's long tradition of separating the military from day to day involvement in the execution and operation of the civilian laws must overcome a strong presumption against it. Any change in this tradition may affect the rights of the civilian community, and may also have a potentially negative effect on the necessary apolitical professionalism of our Armed Forces. In this situation, the case for a change was not made.⁸

However, the committee report specifically acknowledges that “Certain military activities, although otherwise prohibited by the [PCA], are permissible if expressly authorized by statute … [including the Insurrection Act].”⁹ To emphasize this fact, § 278 provides that “Nothing in this chapter shall be construed to limit the authority of the executive branch in the use of military personnel or equipment for civilian law enforcement purposes beyond that provided by law before December 1, 1981.”

The version of the bill reported by the Committee on Armed Services had provided that:

The Secretary of Defense, upon request from a Federal drug agency, is authorized to assign members of the armed forces to assist Federal drug enforcement officials in drug seizures or arrests provided that (1) any such assistance will not adversely affect the military preparedness of the [U.S.], (2) the Secretary of Defense verifies that the drug enforcement operation may not succeed without military personnel assistance, (3) Federal drug enforcement officials maintain ultimate control over the activities and direction of any drug enforcement operation, and (4) such assistance shall not occur in any location or circumstance not previously approved by the Secretary of State.¹⁰

The Dick Act

10 U.S.C. § 12406 provides in part that:

Whenever—

1. the [U.S.] … is invaded or is in danger of invasion by a foreign nation;

2. there is a rebellion or danger of a rebellion against the authority of the Government of the [U.S.]; or

3. the President is unable with the regular forces to execute the laws of the [U.S.];

the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws.

This provision was originally enacted as part of the “Militia Act of 1903”, or the “Dick Act”, which, as the National Guard explains “mark[ed] the first federal legislation that codified the transformation of state and local militia into the modern National Guard”. The legislation “was named for Charles Dick, an Ohio National Guard officer and who also served as a Senator and Congressman. Not since the 1792 Militia Act had there been a federal statute that sought to improve militia training, readiness, and standards, financed by federal instead of state funds.”

Section 502(f)

32 U.S.C. § 502(f) provides in relevant part that:

Under regulations to be prescribed by the Secretary of the Army or Secretary of the Air Force, as the case may be, a member of the National Guard may … be ordered to perform training or other duty … [including s]upport of operations or missions undertaken by the member’s unit at the request of the President or Secretary of Defense.

The Air Force states that “[t]he [PCA] does not apply to [Air National Guard] forces in State Active Duty status or 32 U.S.C. status” and DOD states that PCA-related restrictions “do not apply to … [a] member of the [National Guard] when not in Federal service”.

As Elizabeth Goitein and Joseph Nunn have written, the PCA “applies to the National Guard only when called into federal service. When Guard forces are acting in so-called ‘Title 32’ status — under the command and control of state governors, but paid with federal funds and serving purposes identified by Congress — the Act does not apply.” But they contend that “When the president seeks to have the military deployed for law enforcement purposes, that raises many of the same the concerns that animate the [PCA]” and that “it is highly unlikely that Congress intended for section 502(f) to encompass the suppression of civil unrest at the direction of the president.”

They also noted that:

Although [32 U.S.C. § 502(f)] is included in a section that governs “required drills and field exercises,” [President] Trump relied on it when he asked the governors of 15 states to send their National Guard forces into Washington, D.C. to suppress the protests that followed the police killing of George Floyd. (Eleven governors agreed to this request.) The president did not have to follow the procedures in the Insurrection Act — or accept the political consequences of invoking it — because he had not actually called these Guard forces into federal service.

As to this episode, in the Summer of 2020, Attorney General Barr sent a letter to Washington, D.C., Mayor Murial Bowser, stating that:

• [T]he District experienced days of violent rioting and looting that caused widespread damage, injured dozens of federal and MPD law enforcement officers, breached the Treasury Department annex, and threatened federal operations around the White House complex.

• Faced with the prospect of things continuing to get out of hand, the President requested that we immediately expand the resources available to operate in the District — including by working with the District of Columbia National Guard … and with State officials to make their National Guard personnel available. This was a temporary response to an escalating security crisis. Our objectives were to ensure that the rioting would end, that federal government functions would continue, and that law and order in the Nation’s capital would be restored. Surely you understand that the President could not stand idly by when unrest at the seat of the federal government threatened the safety of federal law enforcement officers and the operations of the [U.S.] government.

• At the direction of the President, the Secretary of Defense … requested assistance from out-of-state National Guard personnel, pursuant to 32 U.S.C. § 502(f) … .

  Consistent with the President’s direction, the Secretary of Defense assigned to out-of-state National Guard personnel the mission of protecting federal functions, persons, and property within the District of Columbia. That mission includes the protection of federal properties from destruction or defacement (including through crowd control, temporary detention, cursory search, measures to ensure the safety of persons on the property, and establishment of security perimeters, consistent with the peaceful exercise of First Amendment rights); protection of federal officials, employees, and law enforcement personnel from harm or threat of bodily injury; and protection of federal functions, such as federal employees’ access to their workplaces, the free and safe movement of federal personnel throughout the city, and the continued operation of the U.S. mails. Each of those units operated under the control of their respective State commanders, who have operated through a coordinated and centralized command center.

V. Immigration

President Trump would have ample justification to use the Insurrection Act to allow the U.S. military to actively assist with a direct law-enforcement role with large-scale deportation efforts.

First, the Supreme Court has concluded in In Re Debs that “[a]mong the powers expressly given to the national government [by the Constitution] are the control of interstate commerce and the creation and management of a post office system for the nation”, regarding which “the national government may prevent any unlawful and forcible interference”. Further, the “strong arm of the national government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails” and “[i]f the emergency arises, the army of the Nation, and all its militia, are at the service of the Nation to compel obedience to its laws.”

Enforcement of our nation’s immigration laws is likewise a power that the Constitution has given to the national government. The Supreme Court concluded in Arizona v. U.S. in 2012 that:

The Government of the [U.S.] has broad, undoubted power over the subject of immigration and the status of aliens. See Toll v. Moreno … (1982). … This authority rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Naturalization,” U. S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations, see Toll … (citing United States v. Curtiss-Wright Export Corp. … (1936)).

In Toll v. Moreno, the Court concluded that:

Our cases have long recognized the preeminent role of the Federal Government with respect to the regulation of aliens within our borders. See, e.g., Mathews v. Diaz … (1976); Graham v. Richardson … (1971); Takahashi v. Fish & Game Comm’n … (1948); Hines v. Davidowitz … (1941); Truax v. Raich … (1915). Federal authority to regulate the status of aliens derives from various sources, including the Federal Government's power “[t]o establish [a] uniform Rule of Naturalization," U.S. Const., Art. I, § 8, cl. 4, its power “[t]o regulate Commerce with foreign Nations”, id. cl. 3, and its broad authority over foreign affairs, see United States v. Curtiss-Wright Export Corp. … (1936); Mathews v. Diaz … ; Harisiades v. Shaughnessy … (1952).

It would seem no more “extreme” to use the military to ensure the enforcement of our nation’s sovereignty through the immigration laws than it is to ensure the delivery of the mail!

Second, it seems obvious that “unlawful obstructions” and “combinations” “make it impracticable to enforce” our immigration laws “by the ordinary course of judicial proceedings”, that “domestic violence” and “unlawful combination” opposes or obstructs the execution of our immigration laws.

Mirian Jordan reported for the New York Times in 2022 that:

• Migrant smuggling on the U.S. southern border has evolved … from a scattered network of freelance “coyotes” into a multi-billion-dollar international business controlled by organized crime, including some of Mexico’s most violent drug cartels.

• [Migrant smuggling] revenues have soared to an estimated $13 billion today from $500 million in 2018, according to [ICE’s] Homeland Security Investigations, the federal agency that investigates such cases.

• Previously, migrants entering Laredo, Texas, waded across the river on their own and faded into the dense, urban landscape. Now, according to interviews with migrants and law enforcement officials, it is impossible to cross without paying a coyote connected to the Cartel del Noreste, a splinter of the Los Zetas syndicate.

Further, the vast majority of apprehended but undetained aliens are never removed. As I have reported, and as the House Committee on Homeland Security’s report on the impeachment resolution against Secretary Mayorkas also noted, data released by Secretary Mayorkas’s DHS reveals that:

Of aliens encountered at the southern border in fiscal year 2013, 98.4 percent of those who were continuously detained have been repatriated (mostly removed or returned) as of December 31, 2021, as have only 6.9 percent of those who were sometimes detained and 15.1 percent of those who were never detained. Of those continuously detained, only 0.7 percent have an unexecuted removal order, while 23.2 percent of those sometimes detained and 12.6 percent of those never detained have unexecuted orders.

And DHS reported in 2019 that there were an “estimated 558,863 fugitive aliens [ordered removed yet] currently at-large in the [U.S.]”. The number is now likely north of one million, as the Transactional Records Access Clearinghouse at Syracuse University reports that since 2019, 654,692 non-detained aliens have been issued final orders of removal.

If anything is “extreme”, it is the extent to which the U.S.’s criminal and civil immigration laws go unenforced, often through claims that they are impracticable to enforce. There would be nothing more reasonable than, through the Insurrection Act, to call on the cavalry to ride to the rescue.

End Notes

¹ Id. at 5 (citing testimony of Edward S. G. Dennis, Jr. on behalf of DOJ, Hearings on H.R. 3519 before the Subcomm. on Crime, House Comm. on the Judiciary, 97th Cong., 1st sess. (1981)).

² H.R. Rept. 97-71, part 2, at 4 (1981).

³ 8 U. Kan. City L. Rev. 164, 185-86 (1940).

⁴ The Library of Congress states that “[a] complete copy of the 1874 edition of the Revised Statutes currently does not appear to be available online.”

⁵ “Federal Aid in Domestic Disturbances 1787-1903: Prepared under the Direction of Major General Henry C. Corbin, Adjutant General, U.S. Army, by Frederick T. Wilson, Chief of Division, Adjutant General’s Office””, 184 (1903), reprinted in “Federal Aid in Domestic Disturbances 1903-1922: Prepared under the Direction of the Secretary of War by the Office of the Judge Advocate General”, 67 Sen. Doc. 263 (1922).

⁶ Id. at 186.

⁷ H.R. Rept. 97-71, part 2, at 7.

⁸ Id. at 11.

⁹ Id. at 6.

¹⁰ H.R. Rept. 97-71, part 1, at 203.