US Federal Law: The Insurrection Act of 1807

Word is traveling across the Internet that President Trump has invoked the Insurrection Act of 1807, a United States federal law which empowers the President of the United States to deploy U.S. military and federalized National Guard troops within the United States.

The Insurrection Act of 1807 provides a “statutory exception” to the Posse Comitatus Act of 1878, which limits the use of military personnel under federal command for law enforcement purposes within the United States.

Before invoking the powers under the Insurrection Act of 1807, 10 U.S.C. § 254 requires the President to first publish a proclamation ordering the insurgents to disperse. Isn’t that what happened when during events at the Capitol building, President Trump released a pre-recorded video statement urging the rioters to “go home,” while repeating his claims about the election results being “fraudulent.” 
 
“This was a fraudulent election, but we can’t play into the hands of these people,” President Trump said. “We have to have peace. So go home. We love you. You’re very special.”

There are Constitutional exceptions to Posse Comitatus restrictions rooted in the President’s own constitutional authority. Defense Department guidelines describe “homeland defense” as a “constitutional exception” to Posse Comitatus restriction, meaning that measures necessary to guarantee National Security from external threats are not subject to the same limitations.

The Insurrection Act of 1807 empowers the U.S. president to call into service the U.S. Armed Forces and the National Guard:

• when requested by a state’s legislature, or governor if the legislature cannot be convened, to address an insurrection against that state (§ 251),
• to address an insurrection, in any state, which makes it impracticable to enforce the law (§ 252), or
• to address an insurrection, domestic violence, unlawful combination or conspiracy, in any state, which results in the deprivation of Constitutionally-secured rights, and where the state is unable, fails, or refuses to protect said rights (§ 253).

The chief clause of the Insurrection Act, in its original 1807 wording (which has been thoroughly updated since to reflect modern legalese), reads:

An Act authorizing the employment of the land and naval forces of the United States, in cases of insurrections Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.

In 2016, Public Law 114-328 was amended to include Guam and the US Virgin Islands under Ch. 13 jurisdiction. §252: “Use of militia and armed forces to enforce Federal authority” currently reads:

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

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Where does the Insurrection Act stand in 2020?

The statute created three separate authorities: The first, codified at 10 U.S.C. § 251, traces all the way back to the 1792 act and allows the president to use troops when requested by the state in which the crisis is taking place. The second, codified at 10 U.S.C. § 252, traces to the 1861 act and allows the president to use troops, even without a state request. And 10 U.S.C. § 253, derived from the 1871 act, likewise allows the president to send troops when “any insurrection, domestic violence, unlawful combination, or conspiracy” prevents enforcement of state laws in a manner that deprives residents of that state of their federal constitutional rights. The statute requires the president to issue a formal proclamation before invoking any of these powers. But once he does, there is no intrinsic limit on how long he can use federal troops to enforce federal law. (source)

Reference:

https://policy.defense.gov/portals/11/documents/hdasa/references/insurrection_act.pdf

https://www.law.cornell.edu/uscode/text/10/252

https://www.brookings.edu/research/the-insurrection-act-and-putting-troops-on-american-streets/

https://en.wikipedia.org/wiki/Insurrection_Act_of_1807