Perhaps after his ludicrous and profane photo op in front of St. John’s Church on June 1, and the near universal repudiation of it by the military establishment,  President Trump has lost interest in the Insurrection Act. Let’s not count on it, though. Using the Insurrection Act would be an abuse of the statute on its own terms, because of federalism concerns, and because it would essentially allow for a military occupation of American cities. Defense Secretary Mike Esper said that this week, and so did former Secretary Mattis and former Chairman of the Joint Chiefs Mike Mullen. Ordering active-duty troops to American cities would be a “last resort” for the most “urgent and dire situations” said Esper. This week in Washington DC, a federal enclave that lacks Tenth Amendment protections, we have seen what federal troops can do to peaceful protesters.  It is not a scene we should want repeated elsewhere in the US. 

Trump’s threats are a marked contrast to the other recent use of federal forces in US states: federalized national guard troops have this year been welcomed in states where they have administered COVID-19 tests, disinfected public facilities, and supported health workers and state public safety officers combatting the pandemic.  

 The Insurrection Act has been invoked sparingly by Presidents bout of respect for the federalist system protected by the Tenth Amendment to the Constitution, and because the police powers in emergencies have historically and traditionally belonged to the states. It is a narrow exception of the general prohibition against posse comitatus, the use of military personnel for civilian law enforcement.  And while authorities on the Act like Professor Steve Vladeck believe it could theoretically be invoked in the current circumstances, Vladeck’s hedge—that President Trump would “own” adverse consequences if it is used– does not seem typical of the calculations of a President who has yet to take responsibility for anything that has gone wrong on his watch.

Past invocation of the Insurrection Act have generally come in two circumstances: (1) at the request of state legislatures; or if they are not in session the Governor of a state, as when George H.W Bush sent federal troops at the request of Governor Pete Wilson of California, following the acquittal of LA Police officers accused of employing excessive force against Rodney King in 1992; and (2) to enforce a civil rights order, under authorities incorporated in the Insurrection Act by the Ku Klux Klan Act of 1871. Those were the authorities used when President Eisenhower ordered the 101st Airborne to defend the Little Rock Nine as they integrated the public schools over the opposition of Governor Orval Faubus; and were also used by Presidents Kennedy and Johnson during the Civil Rights Era, to enforce federal court orders in the face of defiant Southern governors. It is interesting to note that the legislatures have not made the requests noted at (1): it has always been governors, contrary to the statutory requirement.

But the historical and legal context for the Insurrection Act is provided by one of the most recent times its use was considered and rejected.  

At the time Hurricane Katrina made landfall in New Orleans on Labor Day weekend in2005, the George W. Bush Administration was negotiating with Governor Kathleen Blanco of Louisiana over control of emergency response. As the situation on the ground worsened, and it was clear that neither Blanco nor New Orleans Mayor Ray Nagin was able to manage the response and provide for the safety and welfare of the Crescent City’s population, Bush Administration officials attempted to reach an agreement which would allow federal control of the National Guard and deployment of regular federal troops. Blanco resisted, and federal officials, uncertain of the scope of powers provided under the Insurrection Act, declined to invoke it. While ultimately the feds assumed command of the response under the direction of Lt. General Russel Honore, the delays and resulting human misery led to a re-examination of the Insurrection Act.

The effort to amend the statute was an epic fail: it came in 2007, in the John Warner Defense Authorization Act, through the Enforcement of the Laws to Restore Public Order Act. Seen by many governors as a power grab, because of the expansion of the conditions under which the President was authorized to dispatch federal troops or federalize the national guard in emergencies in the states, it became the subject of an intense backlash. The Council of State Governments, National Governors Association, and individual governors protested, enlisted their state Congressional delegations, and in a bipartisan display, secured repeal in the following year’s Defense Appropriation Act. 

It was an impressive show of horizontal cooperation between states to reclaim their primacy in wielding police powers in emergencies. And while legislative history is not the strongest reed used by courts to discern Congressional intent, the rapid turnaround in the law over only a single appropriations cycle is an exceptional example, the kind of thing that any federal court, considering a challenge to an order under the Insurrection Act, would need to consider in litigation against the federal government. 

In natural disasters and emergencies over the years since Katrina, the cooperation and comity of governors, local authorities and the federal government has produced better results than any unilateral assertion of authority by a single level of government. Understandably, governors want to be in control of the circumstances and terms under which federal forces enter their states.  The National Guard troops who were activated in service of the COVID-19 containment mission were welcomed by Governors. A more sinister mission to “dominate the battlespace” would not be. This week, Senate Democrats introduced a bill that would provide expedited review of claims by cities and states that claim abuse of the President’s domestic use of military personnel.  This may be a first step to the first overhaul of the Insurrection Act in 100 years and much-needed reform.   

 

Special thanks to Richard Newbold, LLM Candidate in National Security Law at Georgetown, for his research assistance.