By Regina DiMaggio
In less than six months, the obscure Insurrection Act has become a hot topic within the law enforcement and legal communities for two entirely different reasons: the emergence of racial protests and a looming Presidential election. A once rarely mentioned act has been thoughtfully discussed and presented to address pressing issues of civil and democratic unrest.
In early June, Sen. Tom Cotton (R-Ark.), in a New York Times op-ed, suggested that President Trump and the federal government invoke an infamous law, the Insurrection Act, to deploy federalized troops to “restore order” in cities in which civil unrest stewed in response to the killing of George Floyd.
Now, in late October, President Trump has declined to endorse a peaceful transfer of power after the November election. Democratic leaders and Americans alike are growing increasingly alarmed as Mr. Trump repeatedly dodges questions referring to a transition of power, a quintennial facet of American democracy. With this rhetoric feeding an already tense election season riddled with issues concerning systemic racism, COVID-19, and climate change, law enforcement worries riots will break out on election night, regardless of the outcome. In response, the Insurrection Act has once again been offered as a solution.
However, it is commonly known that the Posse Comitatus Act limits the use of military personnel to engage in civil law enforcement purposes within the United States without the express authorization of Congress. So how are members of Congress and the President discussing evoking the Insurrection Act to command “law and order” to mitigate civil unrest from George Flloyd protests and looming election night possibilities? The Insurrection Act provides a statutory exception to the Posse Comitatus Act. The Insurrection Act of 1807 allows the president to deploy the armed forces domestically to quell civil disorder that renders ordinary law enforcement impracticable. Presidents have only used the act about 20 times in its 200 plus year existence, mostly at the request of the state governor.
Here is how the Act may become prevalent in just a few days.
There are three circumstances in which the Insurrection Act may be invoked: (1) when requested by a state’s legislature, or governor if the legislature cannot be convened; (2) to address an insurrection, in any state, which makes it impracticable to enforce the law; or (3) to address an insurrection, domestic violence, unlawful combination or conspiracy, in any state, which results in the deprivation of constitutional rights, and where the state is unable, fails, or refuses to protect said rights.
Pursuant to 10 U.S.C. § 254, before invoking the powers under the Act, the President must first publish a proclamation ordering the insurgents to disperse. If insurgents do not disperse, the President could then order either the military or federalize the National Guard to suppress what he would have to argue are “unlawful obstruction, combination or assemblages against the authority of the United States.” However, even then, military advisors warn invoking the Insurrection Act is reserved for emergencies. Contrastingly, if protests are peaceful, military forces are not warranted by the Insurrection Act and the military would be barred from acting or aiding as civilian law enforcement pursuant to the Posse Comitatus Act.
Interestingly enough, once the President publishes the proclamation, there is no intrinsic limit on how long he can use federal troops to enforce federal law. However, if the governor forbids the President from sending troops into his or her state, the President could still send in troops if he argues federal law is being obstructed or that the state is not protecting the rights of its citizens.
If riots break out in response to election night results and one of the three circumstances state above are met, the possibility of the invocation of the Insurrection Act is a reasonable possibility. With this, the country might see a strong mobilized military presence aiding or directly participating in civil law enforcement activities in which communities were once familiar in only seeing civil law enforcement presence.
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