On Friday, administration officials posited the President may invoke the “tremendous power” of The Insurrection Act of 1807 (10 U.S.C. 252) in order to have federal troops enforce the Nation’s domestic immigration laws. Of course, this is not new – a small number of judge advocates have already been detailed to the Department of Justice since last summer, augmenting that agency as immigration prosecutors. That move was decried by some lawmakers as “unwise,” but the practice was not halted. But, the administration’s latest rhetorical volley has inspired fevered commentary across the political news spectrum. Into that fray comes a short thought-piece by Professor Steve Vladeck, of the University of Texas School of Law, which was just recently published in The Atlantic.

Professor Vladeck’s commentary posits:

[A]lthough Congress in the Posse Comitatus Act of 1878 generally prohibited use of the federal military for domestic law enforcement, the Insurrection Act was always understood as the principal exception to that general rule.

In turn, the Insurrection Act is both succinct and expansive. It’s text, in toto, reads (emphasis added):

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.

Professor Vladeck’s piece notes that, despite its broad language, use of the Insurrection Act has been less common with “the rise of well-trained (and increasingly well-equipped) modern local police forces.” Further, “[i]n virtually every [historical] case, the act was used in circumstances in which there was no serious dispute that local authorities were inadequate to the task at hand.” And, even then, the act was only used as a “means of restoring civil and civilian order[.]” Whether present circumstances on the border would satisfy that historical standard is a matter of heated disagreement. That being said, recent articles from Reuters, the Washington Post, and CBS News, all chronicle declarations of emergency by state and federal officials over the past month. And, of course, the administration recently requested $4.5 billion in emergency funding for border operations unrelated to the construction of a wall.

Readers interested in more historical context for the use of the Insurrection Act would enjoy the work of The United States Army’s Center of Military History, which has published a three-volume treatise on the subject:

Volume 1 – Role of Federal Military Forces in Domestic Disorders, 1789-1878

Volume 2 – Role of Federal Military Forces in Domestic Disorders, 1877-1945

Volume 3 – Role of Federal Military Forces in Domestic Disorders, 1945-1992

The third volume of that series, authored by the late Dr. Paul Scheips, offers a helpful framing of the Executive powers in question:

The domestic uses of federal military forces fall into two principal constitutional and statutory categories. In the first category, based upon the constitutional guarantee in Article IV, Section 4, of “a Republican form of government” to the states, the president can act only upon receipt of a request from a state’s legislature or from its governor if the legislature cannot be convened. In the second category the president can act upon his own initiative in the case of obstructions to the enforcement of law that cannot be overcome by ordinary judicial proceedings, his authority being based upon Article II, Section 2, charging him with the “faithful” execution of the laws and upon the equal protection of the laws guaranteed by the Fourteenth Amendment, Section 1. The president’s use of force in either of these categories depends upon his own discretion. Also in either case the law requires the president to issue a proclamation before actually committing troops.

Given that understanding, as Professor Vladeck notes:

[T]he text of the statute would seem to be on the president’s side—underscoring just how broad the power is that Congress has delegated to the president, and just how much we have historically relied on political checks, rather than legal constraints, to circumscribe the president’s authority.

It is yet to be seen whether the situation at the border will result in the first invocation of the Insurrection Act in 27 years. The last time a President invoked the Insurrection Act was in 1992. On May 2 of that year, on orders from President George H.W. Bush, approximately 3,500 active duty military personnel (from the Army’s 7th Infantry Division and the 1st Marine Division) arrived in Los Angeles and were employed, alongside National Guard forces activated by the Governor of California, to put down rioting.

4 Responses to “Scholarship Saturday: The “tremendous” power of the Insurrection Act”

  1. Concerned Defender says:

    Seems to me a valid use.  Presidents Reagan, Bush, Clinton, and Obama all spoke about the fact there is a crisis of illegal immigration, and the borders must be more secure.  Each administration took actions to do so – erecting walls, increasing border patrols, strengthening laws, making promises, employer E-verify laws, etc.  So… is this a “manufactured” crisis by President Trump?
    Issue:  Is there a crisis problem at the US borders and impacting the US directly?  Can a 1st world (or any) nation survive with perpetual and indefinite flooding of low skilled illegal immigrants who refuse to follow the laws and assimilate? 
    Rules:  Federal laws control immigration, under the purview of the federal government.  Any nation has a right to border security and denying entry.  It’s fundamental to the survival of a nation.  Circa 2007, the Insurrection Act was broadened by GW Bush.  In pertinent part:
    “The President may employ the armed forces … to … restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition … the President determines that … domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order … or [to] suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such … a condition … so hinders the execution of the laws … that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law … or opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws”
    Analysis:  Well, the US does not have an accurate count on illegal aliens.  It’s estimated somewhere around 30 million, which is about 10% of the US population.  Estimates that about 75% use some form or multiple types of public welfare.  Illegals have been a net drain on the nation, and have undoubtedly en mass voted illegally in elections (aka election tampering, foreign election interference, election fraud), drained states coffers on healthcare, education, social services, police and rescue, prosecutors, and courts and overcrowded jails and criminal justice system.  They commit vastly disproportionate numbers and % of additional crimes.  They also bring unknown diseases, such as this recent outbreak of measles (110,000 annual deaths, mostly in developing nations, and spreading to the US thru illegal immigrants).   We have a first world economy, and are importing 2nd and 3rd world laborers.  That equation is ripe for problems. 
    In just the last few decades, the 10% have radically changed the composition of America and in the coming few decades at the same immigration and birth rates, illegals and their anchor babies will be a large portion of our nation (something like 1 in 6 people), with massive illegal voting blocks and ability to transform entire states.   So this is basically a slow and effective hostile takeover of the United States in a few decades, with an illegal immigrant population which negatively impacts Americans and law and order, and grows larger and faster by the passing day.   And this doesn’t address the overt gangs, terrorists, or possibility of weapons being smuggled into the US.
    So the answer is clearly “yes” there is a crisis, epidemic, threat to public health, insurrection behavior (illegal voting, mass protests, etc.), domestic violence against Americans is occurring from illegals.  This all hinders our laws and law and order in numerous ways.  If there is an counter argument otherwise, I’ve never heard it. 
    The Executive office holds the power to decide.  Of course Congress controls the purse strings.   Doing nothing is not an option.  This is one of the most important problems the US faces. 

  2. Vulture says:

    Jane, you ignorant slut.
    Is it a crisis when the continual existence of the same conditions goes on for years?  Consider the historical frame of reference that Isaac references.  Was it a failure of the judicial process that could not resolve the riots in LA?  It certainly can be argued that it was a failure of judicial process that caused them.  But how much has been done to resolve the perception and or existence of unfairness in the judicial system?  Ask around; you will find that mistrust of authority is already at a high in some communities.
    It was the very inequity and irresponsibility of authority that required the use of the Act.  But has anything really been done to resolve that discrepancy?  Could we now call it a crisis?  So let’s turn to border.  2001, G. Bush called El Paso Texas “Ground Zero” for immigration.  But now, only now, are we calling it a crisis.  A  crisis sufficient to require the same means of quelling violence that required a Marine to fire a single M-2 round over the heads of an LA riot.  According to him, they ran.
    Crisis, OK.  Beyond judicial resolution, not so much.  Exigent, not at all.

  3. AdlawGuy says:

    The President has the power.  Take a look at this  article by Major Furman in 1960.  https://www.hsdl.org/?view&did=456863
    Look at footnote 250, the opinion of the TJAG under Eisenhower is filed at JAGA 1953/6661, 2 September 1953.  Contrary to the summary of the  opinion in Furman’s article, the opinion on file, somewhat like the current debate, merely expresses serious reservations about whether the crisis of visa overstays in 1953 was sufficient to justify the invocation.  However, both DoJ and the Army counsel agreed it was the President’s call and the call was not subject to further review.  The Supreme Court’s travel ban ruling would seem to confirm this analysis relating to a proclamation.  Moreover, today there is evidence that the movement of drugs and persons is facilitated by organized groups.   Crime syndicates that did not exist in 1953 are present today on the border.  The factual basis is stronger today.
    Also let us remember that posse comitatus was passed to stop the Freedman’s bureau and others from using the Army to protect black citizens.  The law is more a testament to the power of Southern Democrats in the 1880s than a protection of anyone’s liberties.  Hell it doesn’t even apply at all to the Navy.

  4. Vulture says:

    Of course there are criminal syndicates that are in existence that weren’t here in the 50’s.  They are in the Whitehouse.