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.

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.

It’s true as a general rule that the federal government is barred from using its military personnel to enforce domestic laws within the nation’s borders. Per the aforementioned Posse Comitatus Act: “Whoever, except in cases and under circumstances expressly authorized by the Constitution of Act of Congress, willfully uses any part of the Army or Air Force… to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”

But several pieces of federal legislation carve out specific exceptions to that blanket policy—and some of those exceptions are broad enough to drive a Humvee through.

The Insurrection Act is one such carve-out. The first part of the statute deals specifically with rebellion against a state government, stipulating that the president may, if requested by a state legislature or governor, send federal troops to suppress that insurrection.

But the second half of the statute is much farther-reaching. Triggering it does not require an organized attempt to overthrow a state or local government—the president is authorized to deploy federal troops within the United States to suppress any “insurrection, domestic violence, unlawful combination, or conspiracy” if he determines that it has prevented the authorities from protecting the rights of the people, or if that unrest “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.”

It was by means of these provisions that the law was used during its last few invocations: by Presidents Eisenhower and Kennedy during the civil rights era to help integrate schools and enforce civil rights laws, and by President George H.W. Bush to contain rioting in Los Angeles in 1992 after the Rodney King beating.

“The president has extremely broad powers to send troops to states, and he is not required to wait for a request from a governor,” Barbara McQuade, a law professor at the University of Michigan, told The Dispatch. “I read these statutes as permitting troops to enforce state law and to go even further to ‘suppress’ ‘domestic violence’ that is hindering the law if the state is unable or unwilling to protect it.”

The fact that Trump can deploy federal troops at his own discretion, of course, doesn’t mean he can command them at whim once they have been so deployed. The Department of Defense has lengthy, ornate protocols governing military behavior in support of civilian law enforcement, although such protocols are largely a matter of department policy and not federal law.

All this raises an obvious question: If the president can reach for the Army any time he feels a state’s domestic enforcement isn’t up to snuff, why has it been nearly three decades since it was last used? As with other laws governing the scope of the powers the president may assume in highly extraordinary circumstances, the answer is that the checks restraining such actions are largely political. The president, the thinking goes, won’t break the glass unless he’s confident lawmakers and the voting public will accept that it’s really an emergency.

In this way, Trump’s dance around the Insurrection Act mirrors a similar controversy in the spring of last year, when he declared a national emergency in order to command the military to begin construction on his long-promised wall on the southern border. After years of unsuccessfully badgering Congress to pass legislation authorizing such a wall, the move came as a shock—he can do that? In that case, the incentive structure was much the same: A statute that was deliberately vague so as not to tie a president’s hands in time of crisis, and the assumption that political pressures would prevent him from abusing them.

In this case, the disincentives are obvious: At a time of unrest, pumping heavily armed soldiers into cities roiled by protest could just as easily ratchet up tensions intolerably as ease them. Further, images of federal troops aggressively quelling demonstrations could further concentrate anger currently directed generally at U.S. law enforcement in his specific direction.

As such, it’s perhaps no surprise that Trump is currently opting for a “threaten-and-see” approach, hoping the mere mention of the Insurrection Act will be enough to persuade governors to take control of riots in their cities. But with his Monday speech, Trump deliberately made himself the face of efforts to restore order in America. If the governors don’t follow through, don’t be surprised if he decides to break that glass after all.

Photograph by Blake Nissen for the Boston Globe/Getty Images