The Insurrection Act of 1807 is a United States federal law[1] that empowers the President of the United States to deploy U.S. military and federalized National Guard troops within the United States in particular circumstances, such as to suppress civil disorder, insurrection or rebellion.
The act provides a “statutory exception” to the Posse Comitatus Act of 1878, which limits the use of military personnel under federal command for law enforcement purposes within the United States.[2][3]
Before invoking the powers under the Act, 10 U.S.C. § 254 requires the President to first publish a proclamation ordering the insurgents to disperse. As part of the Posse Comitatus Act of 1878, these provisions are now codified as amended.
There are Constitutional exceptions to Posse Comitatus restrictions rooted in the President’s own constitutional authority. Defense Department guidelines describe “homeland defense” as a “constitutional exception” to Posse Comitatus restriction, meaning that measures necessary to guarantee National Security from external threats are not subject to the same limitations.
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the Congressional Study Group on Foreign Relations and National Security convened online to discuss the president’s authority to deploy the military domestically, including through the Insurrection Act. In the weeks prior to the session, President Donald Trump had deployed both the military, National Guard units, and federal law enforcement personnel in response to popular protest around the country, often over objections by state and local officials. But what was the legal basis for the president’s actions? And what might Congress be able to do if it believes that the president’s actions are inappropriate?
To discuss these timely and important issues, the study group was joined by two outside experts with deep knowledge in this area: Professor Steve Vladeck of the University of Texas at Austin School of Law; and Michel Paradis of Columbia Law School and the Military Commission Defense Office. They circulated several recommended resources as background reading in advance of the session, including:
Purpose and content
The Act empowers the U.S. president to call into service the U.S. Armed Forces and the National Guard:
when requested by a state’s legislature, or governor if the legislature cannot be convened, to address an insurrection against that state (§ 251),
to address an insurrection, in any state, which makes it impracticable to enforce the law (§ 252), or
to address an insurrection, domestic violence, unlawful combination or conspiracy, in any state, which results in the deprivation of Constitutionally-secured rights, and where the state is unable, fails, or refuses to protect said rights (§ 253).
The 1807 Act replaced the earlier Calling Forth Act of 1792, which had allowed for federalization of state militias, with similar language that allowed either for federalization of state militias or use of the regular armed forces in the case of rebellion against a state government.
The 1807 Act has been modified twice. In 1861, a new section was added allowing the federal government to use the National Guard and armed forces against the will of the state government in the case of “rebellion against the authority of the government of the United States,” in anticipation of continued unrest after the Civil War.In 1871, the Third Enforcement Act revised this section (§ 253) to protect Black Americans from attacks by the Ku Klux Klan. The language added at that time allows the federal government to use the act to enforce the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.:63–64 This section of the act was invoked during the Reconstruction era, and again during desegregation fights during the Civil Rights Era.
The chief clause of the Insurrection Act, in its original 1807 wording (which has been thoroughly updated since to reflect modern legalese),
An Act authorizing the employment of the land and naval forces of the United States, in cases of insurrections Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.
In 2016, Public Law 114-328 was amended to include Guam and the US Virgin Islands under Ch. 13 jurisdiction. §252: “Use of militia and armed forces to enforce Federal authority” currently reads:
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, he 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.
The Insurrection Act has been invoked throughout American history. In the 19th century, it was invoked during conflicts with Native Americans. In the late 19th and early 20th centuries, it was invoked during labor conflicts. Later in the 20th century, it was used to enforce federally mandated desegregation,with Presidents Dwight D. Eisenhower and John F. Kennedy invoking the Act in opposition to the affected states’ political leaders to enforce court-ordered desegregation.More recently, governors have requested and received support following looting in the aftermath of Hurricane Hugo in 1989 and during the 1992 Los Angeles riots.
In 2006, the George W. Bush administration considered intervening in the state of Louisiana’s response to Hurricane Katrina despite the refusal from Louisiana’s governor, but this was inconsistent with past precedent, politically difficult, and potentially unconstitutional.73–75 A provision of the John Warner National Defense Authorization Act for Fiscal Year 2007, added by an unidentified sponsor, amended the Insurrection act to permit military intervention without state consent, in case of an emergency that hindered the enforcement of laws.Bush signed this amendment into law, but some months after it was enacted, all fifty state governors issued a joint statement against it, and the changes were repealed in January 2008.
On June 1, 2020, President Donald Trump warned that he would invoke the Act in response to the George Floyd protests following the killing of George Floyd.In his official statement, Trump urged “every governor to deploy the National Guard in sufficient numbers” to re-establish civil law and order “until the violence has been quelled”.
- Michel Paradis & Scott R. Anderson, “Can Trump Use the Insurrection Act to Deploy Troops to American Streets?,” Lawfare (June 3, 2020);
- Jintzail Hernandez, “Insurrection Act: What You Need to Know,” Roll Call (June 8, 2020) (video featuring interview with Paradis);
- “On the Brink with the Insurrection Act,” The Lawfare Podcast (June 2, 2020), (podcast featuring interview with Vladeck);
- Steve Vladeck, “Why Were Out-of-State National Guard Units in Washington, D.C.? The Justice Department’s Troubling Explanation,” Lawfare (June 9, 2020); and
- Steve Vladeck, “Are the Trump Administration’s Actions in Portland Legal? Are they Constitutional?,” Monkey Cage (July 25, 2020).
The study group coordinator Scott R. Anderson also circulated a handout (download here) with some information on relevant legal authorities for attendees’ reference.
Paradis began the conversation with some background on the Insurrection Act, which is the most widely cited legal authority relating to the president’s authority to deploy the U.S. military domestically. Enacted in 1807 as an addendum to prior statutes authorizing the use of the militias, the original Insurrection Act authorized the use of the standing military in cases of foreign invasion as well as in response to internal insurrection at the request of state authorities. Congress later amended it following the Civil War and enactment of the Fourteenth Amendment in order to allow for the use of the military to enforce federal law against or over the objections of state authorities, but only to enforce certain constitutional rights or where the president determines that rebellion or similar conditions make it “impracticable” to enforce the law through normal means. A few decades later, Congress also enacted the Posse Comitatus Act to restrict the ability to use federal military forces to enforce the law absent express congressional authorization, in large part as a response to Reconstruction-era military occupation in the South. This increased the Insurrection Act’s relevance as a statutory exception to this restriction. None of the conditions set forth in the Insurrection Act clearly applied to recent protests, Paradis noted, raising serious legal questions about any effort on the part of President Trump to invoke the Insurrection Act in response. While some imprecise language in the Insurrection Act might be read this way, doing so would be in serious tension with the original intent and historical practice surrounding the statute.
Vladeck continued by discussing some of the other legal authorities that the Trump administration had used or considered using to deploy armed federal personnel in response to the protests. In many areas, he noted, Congress had provided the executive branch with broad authority to use military and federal law enforcement personnel subject to few conditions and limitations, all of which created opportunities for abuse. He noted that the deployment of state National Guard units to Washington, D.C., earlier in the summer had been pursuant to a previously unnoticed statutory authority, 32 U.S.C. § 502(f), that allowed state governors to volunteer National Guard forces to undertake “[s]upport of operations or missions undertaken by the member’s unit at the request of the President or Secretary of Defense.” Because these forces were not federalized, however, they were not arguably subject to the Posse Comitatus Act. Interpreting this statute broadly, Vladeck argued, could create a problematic scenario where governors of certain states could volunteer their National Guard forces for activities requested by a president of their own party, even where that activity would normally be subject to Posse Comitatus Act limits if pursued through more conventional channels. Vladeck noted that federal statutes authorizing law enforcement personnel–and particularly those in the Department of Homeland Security–appeared to be the legal basis for the federal officers deployed to Portland and elsewhere in the country. While actions directly related to this authority are likely legally defensible, using them as pretext for broader actions related to conduct whose regulation is usually left to the states could raise both statutory and constitutional concerns.
From there, the study group moved to open discussion, including the ability of states to reject or resist federal activities that they do not believe to be legally valid, whether judicial remedies are likely to be available, and how relevant statutory authorities might be changed to limit the risk of executive branch overreach.
