Why Trump Can Invoke the Insurrection Act

It will likely be political concerns—not legal ones—that will determine whether Trump ultimately decides to send in the military.

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As he spoke from the Rose Garden Monday evening, the booming sounds of police breaking up nearby protests clearly audible over his remarks, President Trump’s message was unmistakable: If states failed to quell the riots that have followed the death of George Floyd at the hands of Minneapolis police, he would do it for them.

“We are ending the riots and lawlessness that has spread throughout our country,” Trump said. “Mayors and governors must establish an overwhelming law enforcement presence until the violence has been quelled. If a city or state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.”

This threat, coupled with Trump’s eager rhetoric about sending “heavily armed soldiers, military personnel, and law enforcement officers” into America’s streets, was met with horror by many of the president’s opponents. Sen. Ron Wyden of Oregon denounced the remarks as a “fascist speech” that “verged on a declaration of war against American citizens.” Armchair pundits like Cary Elwes of The Princess Bride fame announced that such an act would be illegal under the Posse Comitatus Act of 1878, “which prohibits military enforcing domestic policies.”

But these denunciations are largely misguided—at least as a matter of law. The law Trump has flirted with invoking, the Insurrection Act of 1807, grants the president discretion to deploy federal troops to uphold domestic law in places where he deems public order has collapsed. Under the current legislative framework, it will likely be political concerns—not legal ones—that will determine whether Trump ultimately decides to send in the military.

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  1. Ragnar

    Right now, the US Military is one of the last institutions that enjoys high levels of public support, in the face of a massive loss of trust in most others. Images of US soldiers in combat with black citizens would be a massive PR nightmare for the military, and likely destroy much of the good will it has recovered and maintained since liberals decimated it during and after the Vietnam War. I'm guessing that's why Mark Esper said what he did recently, and why this will likely be a last resort - especially in a case where the troops are not requested by the state.

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    1. David Gaskin

      Well the military presence in LA didn't seem to impair that goodwill greatly after 1992. I wouldn't say at all. Your caution is totally appropriate though. I think the American people are a little better equipped to handle that situation, where the Army could be used as a stabilizing presence by just showing up. Right now local and federal politicians and AGs of all camps are failing the average silent Americans. But since the violence seems to have ebbed some, probably most of the damage is already done.

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    Adam Bridge

    Because it's legal to do something doesn't make that thing the right thing to do.

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      Aylene Wright

      I certainly don't get the impression that is the point here. That would be wildly inconsistent with the prior work by the same author on related issues!

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  3. Antonio Perez

    There's an unhappy inference that many draw that if the law permits the President to act, then it is fully legitimate for him to do so. But the oath the President takes confines his formal legal authority. Some call it the norms of our system of government. When President Truman tried to seize the steel mills during the Korean War to assure the supply of steel, a Supreme Court Justice relied on the customs and practices of our government to assess whether Congress had previously acquiesced in the President's claim of authority. So the formal legal analysis of the Insurrection Act is much less important than ensuring that the traditional allocation of authority under our Constitution between the Congress, the Executive, and the Courts, and between the Federal Government and the States, is respected. I see nothing in the article that pays attention to these foundational constitutional principles. Unless our conversations focus on these ideas, then surely we won't deserve, much less keep, the liberty we've inherited.

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      Aylene Wright

      I am not sure there is much of a difference between what the article calls "political pressures" and what you are calling "norms". From what I recall of prior articles by the same author regarding the National Emergency last year (when he was at the Bulwark) I am fairly sure he has considered Constitutional separation of powers issues.

      The problem is that as an institution, Congress has pretty much thrown up its hands and ceded more and more power to the other two branches. If Trump were to actually active the US Military under the Insurrection Act, it is certainly possible there will be pushback from House Democrats and lawsuits from affected people in Blue states. But will this actually have any real effect? The problem with the Emergency was that too few legislators actually wanted to solve the problem. Although there was some rare Republican resistance with defectors to the Disapproval resolution, it wasn't enough to overcome a veto. And Democrats seemed more interested in using this as a political cudgel against Trump than pursuing a long term solution by changing the relevant laws, likely because too many of them would prefer to keep options open for when a Democrat is in the WH.

      So I understand why there is an assumption that if Trump breaks that glass, no one would really be able to stop him, or perhaps, truly want to, or at least not as much as they would want to keep the option open for their own side to eventually use.

      Unfortunately it seems too many partisans only want liberty for their own tribe, not those they see as the "enemy". We seem to be headed towards a more authoritarian, post liberal age, no matter which party is in power.

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      1. Antonio Perez

        Political pressures are partisan cost-benefit calculations. Norms are customs we follow because they reflect the historical practices of our community, whether or not they are required by law. Burke has a lot to say about this, as does a long tradition of political theory that shows up repeatedly in our constitutional jurisprudence and the kinds of arguments that have traditional been made and followed in every branch and each level of our governments. It's only the folks who turn law into a binary choice and want to ignore our constitutional history who disregard the distinction. Hope this helps you thinking about such matters, because many think it's the core of our mode of government. Blaming Congress, although merited, only exacerbates the difficulty, because you are stuck in the same old dialectic of division. If you really want to address the situation, you have to start from the premise that everybody shares in responsibility.

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          Aylene Wright

          I think one way the Trump presidency has been somewhat of a canary in a coal mine, in that it seems that unfortunately, many unwritten political norms are actually nowhere as strong as we assumed they were.

          I am not even saying I am totally convinced the rather depressing scenario I laid out will come true. I hope I am wrong! I am just trying to put this article in some context based on my familiarity with the author's prior work.

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  4. Scroop Moth

    Andrew Egger interprets The Insurrection Act as carte blanche.

    In theory, the fact that peacekeeping may be difficult doesn’t make it impossible, or mean that local authorities are “unable.” As it happened, the fact that last night was mostly peaceful and Minneapolis has been mostly peaceful for several nights is evidence that local authorities are not “unable” to protect rights and did not “fail, or refuse” to do so. According to the analysts at National Review, the President must determine that it’s “impossible” for local authorities to restore order. Again, difficult isn’t “impossible.”

    The riots did not oppose “the execution” of Federal law or impede "the course of justice,” because Federal agents weren’t prevented from making arrests, serving process, or conducting judicial proceedings. Agents were not seized nor Federal courthouses surrounded or occupied. I would argue that temporary interruption or delay would not constitute prevention.

    The fundamental reason The Insurrection Act doesn't apply is that the purpose of the protesters -- rioters, if you will -- is to stop lawlessness of police and demand the execution of justice, not to obstruct the course of justice. The civil disobedience is not insurrection against government, it's a petition for redress of grievance.

    Justice Roberts would ask Mr. Egger, “What’s the limiting principle?”

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      Aylene Wright

      It is true that the NR editorial states that "If the president makes the determination that “unlawful obstructions, combinations, or assemblages” are making it impossible to enforce the laws in a state, he can act."

      But they also state,
      "Invoking this law would not constitute imposing a dictatorship or waging a war on the American people any more than when George H. W. Bush did it during the Los Angeles riots in 1992, when Lyndon Johnson did it during riots in 1968, or when Dwight Eisenhower did it to enforce federal desegregation law in 1957. There is no justice and no liberty without order and the rule of law.

      That said, it’s hard to see how Trump could, as a practical matter, invoke the Insurrection Act over the objections of state and local officials. Having hostile and competing authorities trying to police the same out-of-control streets is not a formula for success. The main utility of talking of the Insurrection Act may be in prodding states to be more forceful in their response."

      So this seems to basically be in agreement with this article? Also, there is an Andrew McCarthy piece that argues that it's A-OK to do so.

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      1. Scroop Moth

        Ms Aylene, talking about The Insurrection Act has no utility except to harden Trump’s “base” of supporters into an iron fist. Legal “justifications” are questionable at best. For the purpose of binding up the wounds of the country, it’s dysfunctional. Gen Mattis and some other military leaders have recoiled in horror. Military personnel are 40% Black, it has been reported. This talk is a recipe for demoralization.

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    2. Ragnar

      So, you view the riots, looting, assaults, as "a petition for redress of grievance"? Just to be clear. If so, that's grotesque.

      I view the peaceful protests as such. The former should not be tolerated for any reason. The latter should be protected as much as possible, but not at the cost of life, liberty, safety, and property. There are limits on all constitutional rights. The thugs using the protests as cover for violent attacks and destruction are doing more than shouting "FIRE" in a crowded theater - they are literally burning the crowded theater.

      Further, there are anarchists in the midst of these protests that I believe ARE doing what they are doing to destroy the US politico-economic system in a moment of great vulnerability: record numbers of people are out of work; local governments are teetering in the edge of solvency; people are already terrified of getting sick and confined to their homes.

      Your rhetoric above is troubling. That you would try to justify preventing the federal government from restoring order and public safety in the event the local government is unwilling to do so (for fear of angering base voters - these are liberal, Democrat enclaves and governors with political ambitions after all) - is pretty reprehensible in my view.

      Who and what are you protecting?

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      1. Scroop Moth

        I argued that the particular facts about the disorder and its containment don't warrant The Insurrection Act.

        The relatively small number of looters is a distraction from the magnificent, defining aspirations of many thousands of peaceful protesters who are striking a harmonious, mystical chord of peace and justice. I reject Yuval Levin's assertion that the looters and rioters have "distorted" that achievement. The methods of the protesters are worthy of their great cause. This is an uplifting moment in our history, but some people have a political and ideological motivation to disparage the protests as riots.

        As for the question of military intervention, the looting was not insurrection aimed at preventing government. It was a pathetic symptom of injustice, inequality and lack of attachment. Nobody says looters shouldn't be prosecuted. But we should not talk about prosecuting looters as a conservative diversion from fixing the antecedent denial of justice and commonwealth. And the looting should not be characterized as a defect of the struggle for peace and justice.

        This inflection point in our social history must not be spoiled by hideous talk of a domestic military invasion into the heart of our democracy.

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    Bill Nelson

    Imagine the number of law suits being filed by states, counties and cities.
    Recall that Washington led the militia into Pennsylvania to quell the Whiskey Rebellion, 1793?

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    Aylene Wright

    One little historical quibble here, the description of the Insurrection Act as a "carveout" from the Posse Comitatus Act gives the impression the Insurrection Act passed *after* the PCA. But it was actually the other way around. Also, the intentions of those who backed it were actually far from noble, as it was part of the end of Reconstruction in the South. The effect was to withdraw Army protection from Black freedmen. So it is somewhat ironic to see people from the Left now praise the Posse Comitatus Act.

    (It is also ironic that the law Trump used to justify his Emergency Declaration to direct military funds to the Wall was actually passed to LIMIT a President's Emergency powers.)

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    Kaitlin Johnson

    This may be a naive question, but is there any possibility Trump did not know of the existence of his potential powers? It doesn’t seem he is very well constrained by prudent political calculation if he truly wants something done.

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    JDW

    Excellent article Andrew Egger but I hesitated to like it because I am not happy that this is true. That it is true though is a fact so thank you for the reporting.

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    1. Ragnar

      Are you happy that liberal governors are trying to help their reelections and careers while people's lives and livelihoods burn as they "give people room to destroy"?

      I'm not...and if Cuomo, Pritzger, and Wolf want to keep their Prog cred by letting my business burn and my customers be assaulted, I'd be delighted to see Trump send in the troops.

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