President Trump threatened on Monday to use federal forces to quell the protests and violence that have swept the country, a measure that would require the use of an 1807 law called the Insurrection Act, legal experts said.
“If a city or state refuses to take the actions 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,” Mr. Trump said in the Rose Garden.
Although he did not mention it by name, Mr. Trump would be invoking the Insurrection Act, a group of statutes approved by Congress in the early 1800s that gives the president the power, under some conditions, to activate federal troops for domestic law enforcement.
What is the Insurrection Act?
An early version of the Insurrection Act was first approved by Congress in 1792 to “provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions.” It has been amended several times in the centuries since.
Generally, the law gives the president the power to send military forces to states to quell widespread public unrest and support civilian law enforcement. But before invoking it, the president must first call for the “insurgents” to disperse, according to a Congressional Research Service report published in 2006. If stability is not restored, he may then issue an executive order to deploy troops.
The idea for the law was that there could be circumstances in which the local and state authorities were either unable or unwilling to maintain order, said Stephen I. Vladeck, a law professor at the University of Texas School of Law. In those cases, the military would be the backstop.
What is its relationship to state governments?
The use of the military for civilian law enforcement has been restrained as part of the Constitution’s protections for civil liberties and state sovereignty. State governments maintain the authority to keep order within their borders, a power given to them under the Posse Comitatus Act of 1878.
Generally, that law forbids the use of the military as a domestic police force.
But the Insurrection Act authorizes the president to use the military to suppress an insurrection if a state government requests it. And there is some leeway in his discretion, such as if he considers that the unrest is obstructing laws of the United States.
What are previous examples of its use?
The last time that the act was used was in 1992, when riots in Los Angeles broke out after four white police officers were acquitted in the beating of Rodney King, a black motorist. Armed forces have also been used to quell civil disturbances after natural disasters, such as in widespread looting in St. Croix, in the U.S. Virgin Islands, after Hurricane Hugo in 1989, according to the Congressional Research Service report.
These statutes were used regularly throughout U.S. history.
They were employed in conflicts with Native Americans along the 19th-century frontier; during industrial strife in the late 19th century and the early 20th century; and to enforce federal court orders requiring desegregation during the civil rights movement, Professor Vladeck said in an email Tuesday.
Kent Greenfield, a constitutional law professor at Boston College, told The Associated Press that, in Mr. Trump’s case — and unlike the clashes over school desegregation — there is no allegation that states are refusing to enforce federal law.
“He is not saying that the laws aren’t being enforced,” Mr. Greenfield said of the president. “He is saying they’re not being enforced the way he wants them to be enforced.”
Professor Vladeck said that politics also played a role in whether presidents used the act. “The Insurrection Act hasn’t been invoked since 1992 — largely because domestic use of the military is generally unpopular,” he wrote on Twitter last week.
Could the president’s use of the Insurrection Act be opposed?
Originally, the statutes set clearer limitations, like a sunset provision for the use of military forces, and a required judicial review, Professor Vladeck said.
But after those provisions were repealed, it became “somewhat unclear how an abuse of the statute could be reined in,” he said.
“We’ve been lucky, historically, that political considerations have prevented presidents from abusing these authorities,” he said. “But there is no guarantee that comparable considerations would restrain President Trump.”