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 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.