Last Thursday, a federal judge in San Francisco issued a temporary restraining order against President Donald Trump’s unilateral deployment of the California National Guard to facilitate immigration raids in the Los Angeles area, saying that takeover was illegal and unconstitutional. Although U.S. District Judge Charles Breyer’s order was stayed the same day by the U.S. Court of Appeals for the 9th Circuit, the question of whether Trump complied with the statute he cited to justify that deployment remains a live issue.
Trump could avoid that issue by instead relying on the Insurrection Act, which on its face gives the president alarmingly broad authority to deploy active-duty military personnel as well as National Guard members in response to domestic unrest such as the sometimes violent protests against Trump’s immigration crackdown. Since Trump has indicated he might do that, now is a good time to consider why there is wide agreement that the Insurrection Act, which descends from legislation that Congress approved between 1792 and 1871, is outmoded and dangerously broad.
The current version of the Insurrection Act includes three sections. The first, 10 USC 251, applies “whenever there is an insurrection in any State against its government.” In that situation, the president “may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.” Since this section envisions deployments only in response to state requests, it is not relevant to the current situation in California, where Trump has deployed about 4,000 National Guard members and about 700 U.S. Marines over the objections of local and state officials.
By contrast, the second section of the Insurrection Act, 10 USC 252, applies “whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.” In that case, the president “may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.” Section 252 gives the president much broader discretion than Section 251.
Likewise the third section of the Insurrection Act, 10 USC 253, which says the president, “by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy” in either of two situations. The first, which has been invoked by past presidents but does not seem relevant in this case, involves violations of constitutional rights that a state has proven unwilling or unable to protect. But Section 253 also applies when any of the listed forms of illegal activity “opposes or obstructs the execution” of federal laws or “impedes the course of justice under those laws.”
It seems highly doubtful that the intermittently violent protests against immigration raids have made it “impracticable” to enforce federal law in California. The case that Breyer heard, which involves Trump’s interpretation of 10 USC 12406, raises a similar issue, since the administration asserted that the protests had created a situation in which the president was “unable with the regular forces to execute the laws of the United States.”
Breyer thought that condition clearly had not been met. “The statute does not allow for the federalizing of the National Guard when the President faces obstacles that cause him to underperform in executing the laws,” he wrote. “Nor does the statute allow for the federalizing of the National Guard when the President faces some risk in executing the laws, though of course, federal employees should never have to fear danger when performing their jobs. The statute requires that the President be ‘unable’ to execute the laws of the United States. That did not happen here.”
The Insurrection Act, however, does not say enforcement of federal law must be objectively “impracticable…by the ordinary course of judicial proceedings.” Section 252 applies whenever the president “considers” that to be true. And Section 253 requires even less: only that disruptive activity “opposes or obstructs” enforcement of federal law.
In the 1827 case Martin v. Mott, the Supreme Court considered the president’s powers under the Militia Act of 1795, a predecessor to the current Insurrection Act. The 1795 law authorized the president to call up the militia to “execute the laws of the Union, suppress insurrections, and repel invasions.” The Court unanimously concluded that “the authority to decide whether the exigency has arisen belongs exclusively to the President” and that “his decision is conclusive upon all other persons.”
The Insurrection Act’s terms are so broad and vague that the statute arguably allows the president to deploy “the militia or the armed forces” at will in response to nearly any form of domestic disorder. If so, it is hard to see what remains of the Posse Comitatus Act, which makes it a crime to deploy the armed forces “to execute the laws” except in “cases and under circumstances expressly authorized by the Constitution” or an act of Congress.
“Under normal circumstances,” notes Joseph Nunn, counsel for liberty and national security at the Brennan Center for Justice, “the Posse Comitatus Act forbids the U.S. military—including federal armed forces and National Guard troops who have been called into federal service—from taking part in civilian law enforcement. This prohibition reflects an American tradition that views military interference in civilian government as being inherently dangerous to liberty.”
Given that tradition, the Insurrection Act “should be used only in a crisis that is truly beyond the capacity of civilian authorities to manage,” Nunn writes. “However, the Insurrection Act fails to adequately define or limit when it may be used and instead gives the president significant power to decide when and where to deploy U.S. military forces domestically.”
Previous presidents have used that power in various ways. “Presidents George Washington and John Adams used it in response to early rebellions against federal authority,” Nunn notes. “President Abraham Lincoln invoked it at the start of the Civil War, and President Ulysses Grant used it to crush the first incarnation of the Ku Klux Klan in the 1870s. Several other presidents, including Andrew Jackson, Rutherford Hayes, and Grover Cleveland, have deployed troops under the Insurrection Act to intervene in labor disputes, invariably on the side of employers. Most famously, Presidents Eisenhower, Kennedy, and Lyndon B. Johnson all invoked the Insurrection Act during the civil rights movement to enforce federal court orders desegregating schools and other institutions in the South.”
The last invocation of the Insurrection Act was a response to the riots that followed the 1992 acquittal of the Los Angeles police officers who beat motorist Rodney King. But in that case, National Guard troops were federalized at the request of California Gov. Pete Wilson under Section 251. By contrast, California’s current governor, Gavin Newsom, not only has not requested such intervention; he immediately objected to it, saying it was unnecessary, provocative, and illegal. He challenged the deployment in the federal lawsuit that resulted in Breyer’s temporary restraining order.
So far, Trump has not invoked the Insurrection Act, and he initially seemed reluctant to do so. On June 8, when Trump was asked whether the L.A. protests qualified as an “insurrection,” he replied: “No, no. But you have violent people, and we are not going to let them get away with it.” He added that “you actually really just have to look at the site to see what’s happening.”
By that evening, however, Trump was saying that “violent, insurrectionist mobs are swarming and attacking” federal agents in Los Angeles. The next day, he again described “the people who are causing the problems” as “insurrectionists.” In a speech at Fort Bragg on June 10, Trump averred that California politicians are allied with “troublemakers, agitators, and insurrectionists” who are engaged in a “willful attempt to nullify federal law and aid the occupation of the city by criminal invaders.”
Notably, the Insurrection Act neither defines nor requires an “insurrection.” Section 252 refers to “unlawful obstructions, combinations, or assemblages, or rebellion.” Section 253 is similarly sweeping, referring to “any insurrection, domestic violence, unlawful combination, or conspiracy.” Those terms likewise are undefined, which poses an obvious problem for anyone who thinks there should be legal limits on domestic military deployments.
Even when protests are generally peaceful, the illegal conduct of a minority, whether it involves vandalism, looting, blocking streets, or assaulting police officers, is “unlawful” by definition. Such actions can easily amount to “obstructions” and may qualify as “domestic violence.” When several people are involved, it is no stretch to perceive an unlawful “combination,” “assemblage,” or “conspiracy.” The upshot seems to be carte blanche for federal military intervention in response to any protest that includes conduct fitting those labels, constrained only by the president’s assessment of the impact on federal law enforcement.
“The Insurrection Act constitutes an express statutory authorization within the terms of the Posse Comitatus Act,” the American Law Institute (ALI) noted last year. “Presidents have several dozen times invoked the Insurrection Act to address major outbreaks of violence and the imminent or actual collapse of federal or state law enforcement. Yet the need for presidents to invoke the Insurrection Act today must be considered in light of the size and capacity of modern law-enforcement agencies at the state and local level, as well as a large federal law-enforcement capacity available to the president, which in 2020 stood at almost 137,000 federal officials authorized to carry firearms, make arrests, or both.”
The Insurrection Act “provides broad authority without sufficient checks and
balances,” the ALI warned. “It is an old statute with vague triggers for the indefinite domestic use of military force. Some of these triggers are expressed in antiquated language. And the Insurrection Act contemplates no role for Congress in the use of the authorities under the Act even though the president receives those authorities from Congress. These flaws in the Insurrection Act have been clear for a long time and have prompted numerous proposals for reform.”
The ALI, whose membership “spans a range of legal and political views,” recommended several principles that should guide reform of the Insurrection Act, including the elimination of “antiquated terms,” such as combination, obstruction, and assemblage, that “lack settled contemporary meaning.” The ALI also recommended that Congress “strengthen the conditions” for using the Insurrection Act, specifying “the goal of ensuring enforcement” and “the requirement that the deployment be necessary to protect public safety and security.” It said Section 253’s reference to “domestic violence,” for example, “should be amended to make clear that the violence must be such that it overwhelms the capacity of federal, state, and local authorities to protect public safety and security.”
The ALI added that Congress should impose time limits on deployments under the Insurrection Act and require “reporting and consultation.” Specifically, it said Congress should “require the president to consult, prior to the deployment of troops, with the governor of any state into which troops will be deployed”; “require the president to make findings on the need to invoke the Insurrection Act” and report those findings to Congress within 24 hours; limit deployments to 30 days unless Congress authorizes an extension; and “establish a fast-track procedure for Congress to vote on renewal of presidential authority under the Insurrection Act.”
While the Insurrection Act itself seems to impose few constraints on the president, it is notable that Trump did not invoke it on June 7, when he instructed Secretary of Defense Pete Hegseth to call up the California National Guard. Trump’s decision to rely instead on his more limited authority under 10 USC 12406 suggests that political considerations can dissuade presidents from invoking the Insurrection Act in circumstances where the judgments it requires are questionable. But whether or not Trump reconsiders his reticence, the Insurrection Act is in desperate need of reform to keep it from swallowing the Posse Comitatus Act.
