Law scholar explains the Insurrection Act

Military police secure a perimeter near to the White House on June 3 in Washington. Photo: Associated Press

By Kelly Montoya

Military police secure a perimeter near to the White House on June 3 in Washington. Photo: Associated Press

Law scholar explains the Insurrection Act

By Kelly Montoya
Charlton Copeland, professor at the University of Miami School of Law, expounds on the history and uses for the legislation cited by President Trump during recent protests.

The killing of George Floyd, the African American man who died as a white police officer pinned his neck to the ground under a knee, sparked numerous days of nationwide protests against social injustice and police brutality that ranged from peaceful to uncontrolled riots and burning.

The United States is experiencing a type of national fury that had not been seen in years, since the police officers who brutally beat Rodney King, another African American man, were acquitted in 1992.

Back then, the unrest and riots that followed the acquittal were combatted with the use of U.S. military force in the streets of Los Angeles, explained Charlton Copeland, law professor at the University of Miami School of Law.

And now, President Donald Trump has vowed to do the same throughout the U.S., if he deems it necessary.

“If a city or a 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,” said Trump during his statement to the nation on June 1. The president said he would do that by invoking the Insurrection Act.

Copeland teaches Administrative Law, Constitutional Law, and Federal Courts. He recently wrote about presidential power and particularly the ways that partisan polarization enhances presidential capacity to act unilaterally without much risk of being checked. He explained the Insurrection Act and its history, uses, and implications.

What is the Insurrection Act?

The Insurrection Act was originally enacted in 1807 and empowered the President of the United States to deploy Armed Forces (Army and Navy) for the purposes of responding to “insurrections of obstruction of the law” whether within the United States or its territories. The Act imposed a precondition for the use of the military. Specifically, it based the president’s authority to deploy military forces on the condition that the president already had authority to call militia. That authority had been extended to the president early in the life of the nation as part of the larger settlement of the west and used primarily against Native Americans in the frontier.

America’s racial history is inexplicably tied to the Insurrection Act, as it has been intimately tied to American westward expansion and clearance of Native Americans, expanded to respond to the threats of slave insurrections during the antebellum era, and expanded and constrained in the aftermath of the Civil War. In the aftermath of Hurricane Katrina, the Insurrection Act was amended to expand the president’s authority to deploy the military for purposes including natural disasters, public health emergencies, and terrorist attacks, among other things. The amendment was then repealed in the wake of vigorous opposition at the state level. The story of the Insurrection Act is closely tied to the story of American federalism.

When has it been invoked in the past?

The first use of the act appears to have been in 1808, when Thomas Jefferson deployed the Armed Forces to quell protests in Vermont against the Embargo Act that prohibited trading in foreign ports. The Insurrection Act appears to have been used in efforts to prevent Americans from becoming entangled in foreign disputes—including Texas-Mexico disputes, disputes at the Canadian border, and American civilian military adventurism in Cuba. These were attempts to enforce the Neutrality Act, which was meant to limit U.S. involvement in wars.

As mentioned, the Insurrection Act was expanded in the aftermath of the Civil War and was used during reconstruction in former Confederate States like South Carolina and Louisiana. It has been used in labor disputes at the end of the 19th and 20th centuries. It was used in race riots during World War II. It has been used in several riots, including in Chicago, Baltimore, and Detroit in 1968. It was also used in 1992 in response to the Los Angeles riots following the acquittal of the police officers who brutalized Rodney King.

But when we think about instances of its use without the approval of state-level actors, those instances largely occurred in the late 1950s and 1960s involving the desegregation of educational institutions in Little Rock, Alabama, and Mississippi. Not since that time has the act been used without a state’s request. Trump has hinted at invoking the act to deport undocumented immigrants and has in fact used military personnel in ways that appeared to be a move toward invoking the Act with respect to immigration surveillance. 

Why is it typically used?

It is typically used when a state has requested it—that is, when a state deems its capacity to be overwhelmed by some emergency. As the examples demonstrate, it is decidedly connected to enduring disputes over race and economics and the constellation of conflicts that arise from those forces within American historical and political development.

What type of precedent does this set if President Trump uses it?

It would not be out of the ordinary for Trump to use it. It would be extraordinary for him to use it unilaterally. That is in opposition to state-level officials. What is also troubling is the fact that it is in direct contrast with the instances of the use of the act by [Dwight D.] Eisenhower and [John F.] Kennedy, which were aimed at enforcing articulated federal law that the states opposed. Eisenhower and Kennedy were upholding the authority of the federal courts in each of those instances.

There is no similarity here, and this would set a startling precedent for an expansion of presidential authority to be used in ways that allow for even greater unilateral ways, which, especially for this administration, means more partisan and self-serving ways. The other precedent that this sets is simply the horrific imagery that was displayed to the world of military troops attacking peaceful protesters in an effort to move them from an area outside the White House. The symbolism of the guns seemingly aimed at the child sitting on her father’s shoulders is a horrific image for American democratic self-governance.

So, the precedent goes beyond the problems of unilateral presidential action to include a government that has the capacity to make ordinary citizens its enemy and confront them with military force. In our most vivid imaginations this is likely not where we thought we would be.

What is the effect on law enforcement if the military jumps in? Do they work in tandem?

I do not know for certain, but it cannot be good. Either the state has called the federal government in because of an overwhelmed state capacity, or the federal government deems the state’s actors to be untrustworthy with respect to upholding federal law. I am also not sure how the interaction between the Armed Forces and the state and local law enforcement actually works on the ground.

What should civilians know if it is enacted?

Again, that this would be a decisive expansion of unilateral authority by the president. It would be a break with precedent.