Can, or should, the Insurrection Act be invoked?

Claire Finkelstein of the Law School spoke to Penn Today to discuss the history and meaning of a rarely used law, propelled into the news this week.

Armed soldiers stand in the grass in front of a low wall behind which a large protest is taking place.
Military police soldiers attached to the Texas Army National Guard’s 136th Maneuver Enhancement Brigade support local law enforcement during a protest in Austin, Texas, on May 31, 2020.

As protests continued across the nation in the wake of George Floyd’s killing by police officers, President Donald Trump this week lashed out at governors, calling their response to the protests weak and saying he would use the military by invoking the Insurrection Act if states failed to quell violence and looting.

So, what exactly is the Insurrection Act? Penn Today spoke with Penn Law professor Claire Finkelstein, who directs the Center for Ethics and the Rule of Law, to find out the history of the act, and why it’s so controversial to suggest invoking it in the current crisis.

Claire Finkelstein smiles beside a brick building
Claire Finkelstein is the director of the Center for Ethics and the Rule of Law.

Let’s start with the basics: What is the Insurrection Act?

The Insurrection Act of 1807 is an exception to the general principle, as well as a federal law, that provides that the military may not be involved with civilian law enforcement. That is a fundamental principle of U.S. civil-military relations. To ensure we did not end up with a military dictatorship, our founders in their wisdom treated the military as subservient to civilian leadership (which is why we have a civilian head of the armed forces). And in 1878, Congress passed the Posse Comitatus Act, which made the prohibition of military engagement with civilian law enforcement federal law. 

Now there are exceptions to that principle. For instance, governors may call for the National Guard. And then there is the Insurrection Act, which is an early 19th-century statute that allows the president of the United States to call on the military to put down an insurrection.

Experts seem to agree that the level of insurrection that we would need in order to invoke that act goes far beyond where we currently are with the level of civil unrest in the country. What the president has done, though, is to threaten to use troops to engage in law enforcement, based on the Insurrection Act. This is something that military leaders are very unhappy about. 

Why was the act passed initially?

The Insurrection Act was passed by Congress and signed into law by President Thomas Jefferson, to limit presidential power. But as with all statutory limits on the president, by identifying a narrow, but specific set of instances in which the president may use a certain power, the Insurrection Act also licenses the use of that power. Thus, although the Insurrection Act was intended to restrict the ability of presidents to use federal troops for law enforcement purposes, that Act has served on several occasions in our history to authorize precisely such action. 

In what instances has it been used in the past? 

President George H.W. Bush used the Insurrection Act of 1992 in the case of the Los Angeles riots in response to the civil unrest following the acquittal of the officers who assaulted Rodney King. Use of the Insurrection Act was controversial then, and it would be even more controversial to use it now. 

The act was also invoked by John F. Kennedy in 1962 and 1963 to send federal troops into Mississippi and Alabama to enforce civil rights laws. That’s the irony some are pointing out, which is that it has previously been used by Kennedy to enforce civil rights, in light of the resistance to implementing the civil rights laws. 

In 1967, President Lyndon Johnson sent the 82nd and the 101st Airborne Divisions to Detroit when there were riots between police and residents in response to the assassination of Martin Luther King. The act has been invoked before in this context so it would not be unprecedented. But there are very few instances in all.

This is a president who has sided very firmly with law enforcement, which has been accused of race-based attacks on civilians and is trying to use the military as a prop in his attempt to portray himself as on the side of law and order. Given the reason for the current civil unrest, using the act under these circumstances would be a highly inflammatory and unwise thing to do.

Also, this president does not have the trust of the country. He’s already such a divisive figure that I am concerned that invoking the Insurrection Act in this context would be perceived as overreach on the part of the federal government to such a degree that it could be like throwing a lit match into a vat of kerosene.

Is this something that Trump would realistically invoke? 

President Trump has been challenging the authority of the governors of the various states for a while, particularly in connection with the COVID-19 pandemic. He has been saying things that are legally and factually incorrect, such as that he has the ability to counter governors’ stay-at-home orders and require the governors to reopen the states, which he eventually walked back because it was so clearly legally false. 

The governors, under the 10th Amendment to the U.S. Constitution, have the sole power to control and regulate the measures that affect health, welfare and safety in their various states. That means they control criminal processes and the criminal justice system. They enjoy sole authority to close schools, put in place stay-at-home orders, and require, for example, that individuals wear masks. They decide what counts as an essential business and what is not an essential business and can issue extensive restrictions on personal liberty in order to ensure the safety of state residents. 

The threat to invoke the Insurrection Act thus comes at a time where there was already a pitched battle between the president and the governors issuing stay-at-home orders as to who had the legal ability to end those orders. But there is no doubt about who has it—it’s the governors.  

So, when you add this background of controversy to our current climate of protests and civil unrest, the situation has become extremely fraught because now we have a situation in which governors are not only struggling with local law enforcement situations but are also calling out the National Guard. Governors have the right to do that; in effect, it’s the equivalent of the old state militia that governors controlled under the Constitution.

Under the Insurrection Act, the President has the authority to federalize the national guard in case of rebellion within a state, or to call forth the military if there is an insurrection against federal law. In either case, it is intended to be a rare, emergency power, which enables the president to use the military in ways that would normally be impermissible under the principle of posse comitatus. 

If the president federalized the state National Guard, he would be challenging the governors’ authority with regard to local law enforcement and their authority with respect to the National Guard. It would be an explosive development. 

What are your thoughts on the threat of its use now? 

This should be a last-ditch emergency measure. It should not be something that presidents go to lightly, and certainly not if they see that governors are able to get law enforcement and the National Guard to regain control.

It was contemplated for use after Hurricane Katrina, but it was eventually decided that there was a better way to get the needed help. I think that was the right call. 

There should be a very, very strong preference in favor of allowing governors to handle civil unrest themselves. Now, having said that, that doesn’t mean that the federal government shouldn’t be working with the governors to help put resources at their disposal. 

The states could declare a state of emergency that would make them eligible for federal aid, but unlike in the case of a natural disaster, we have seen that the governors are reluctant to request such aid and that they prefer to handle civil law enforcement without interference from the federal government. I think that’s partly because they don’t want to give the president any additional legal reasons for intervening. They don’t want the federal government involved, they have not called for the federal government to assist them. I think this clearly shows that if the president began sending in federal troops, they would most certainly be unwelcome by state governors. 

How does this issue relate to the work you do at the Center for Ethics and the Rule of Law?

The Center for Ethics and the Rule of Law really specializes in exactly what we’re talking about now, the intersection of national security issues and the rule of law. 

I think it’s very important that when we think about our national security, we think in terms of the long-term impact of our efforts to secure the homeland. CERL addresses the long-term impact of our efforts on the rule of law and on our collective ethical values so that we don’t find ourselves in an emergency situation where we are pressed up against the boundaries of the law.

Our present collective confusion in this understanding of where the federal and state powers lie, what our democracy requires, and how those two sources of power stand in relation to one another shows that we have not done enough hard thinking in anticipation of situations like the ones we are now facing. 

That’s where a university center like ours can play a critical role in preparing the country for moments of crisis.

Hopefully we will come out of this as a stronger nation because we’ll have a better understanding of what we need to address and prepare for to protect our democracy.