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Explainer

The Insurrection Act Explained

The law, which lets the president deploy the military domestically and use it for civilian law enforcement, is dangerously vague and in urgent need of reform.

Published: April 21, 2022

The Insur­rec­tion Act needs a major over­haul. Origin­ally enacted in 1792, the law grants the pres­id­ent the author­ity to deploy the U.S. milit­ary domest­ic­ally and use it against Amer­ic­ans under certain condi­tions. While there are rare circum­stances in which such author­ity might be neces­sary, the law, which has not been mean­ing­fully updated in over 150 years, is danger­ously over­broad and ripe for abuse.

What is the Insur­rec­tion Act?

The Insur­rec­tion Act author­izes the pres­id­ent to deploy milit­ary forces inside the United States to suppress rebel­lion or domestic viol­ence or to enforce the law in certain situ­ations. The stat­ute imple­ments Congress’s author­ity under the Consti­tu­tion to “provide for call­ing forth the Mili­tia to execute the Laws of the Union, suppress Insur­rec­tions and repel Inva­sions.” It is the primary excep­tion to the Posse Comit­atus Act, under which federal milit­ary forces are gener­ally barred from parti­cip­at­ing in civil­ian law enforce­ment activ­it­ies.

Although it is often referred to as the “Insur­rec­tion Act of 1807,” the law is actu­ally an amal­gam­a­tion of differ­ent stat­utes enacted by Congress between 1792 and 1871. Today, these provi­sions occupy Sections 251 through 255 in Title 10 of the United States Code.

What does invok­ing the Insur­rec­tion Act allow the pres­id­ent and milit­ary to do?

Under normal circum­stances, the Posse Comit­atus Act forbids the U.S. milit­ary — includ­ing federal armed forces and National Guard troops who have been called into federal service — from taking part in civil­ian law enforce­ment. This prohib­i­tion reflects an Amer­ican tradi­tion that views milit­ary inter­fer­ence in civil­ian govern­ment as being inher­ently danger­ous to liberty.

Invok­ing the Insur­rec­tion Act tempor­ar­ily suspends the Posse Comit­atus rule and allows the pres­id­ent to deploy the milit­ary to assist civil­ian author­it­ies with law enforce­ment. That might involve soldiers doing anything from enfor­cing a federal court order to suppress­ing an upris­ing against the govern­ment. Of course, not every domestic use of the milit­ary involves law enforce­ment activ­ity. Other laws, such as the Stafford Act, allow the milit­ary to be used to respond to natural disasters, public health crises, and other similar events without waiv­ing the restric­tions of the Posse Comit­atus Act.

In theory, the Insur­rec­tion Act should be used only in a crisis that is truly beyond the capa­city of civil­ian author­it­ies to manage. However, the Insur­rec­tion Act fails to adequately define or limit when it may be used and instead gives the pres­id­ent signi­fic­ant power to decide when and where to deploy U.S. milit­ary forces domest­ic­ally.

When can the pres­id­ent invoke the Insur­rec­tion Act?

Troops can be deployed under three sections of the Insur­rec­tion Act. Each of these sections is designed for a differ­ent set of situ­ations. Unfor­tu­nately, the law’s require­ments are poorly explained and leave virtu­ally everything up to the discre­tion of the pres­id­ent.

Section 251 allows the pres­id­ent to deploy troops if a state’s legis­lature (or governor if the legis­lature is unavail­able) requests federal aid to suppress an insur­rec­tion in that state. This provi­sion is the oldest part of the law, and the one that has most often been invoked.

While Section 251 requires state consent, Sections 252 and 253 allow the pres­id­ent to deploy troops without a request from the affected state, even against the state’s wishes. Section 252 permits deploy­ment in order to “enforce the laws” of the United States or to “suppress rebel­lion” whenever “unlaw­ful obstruc­tions, combin­a­tions, or assemblages, or rebel­lion” make it “imprac­tic­able” to enforce federal law in that state by the “ordin­ary course of judi­cial proceed­ings.”

Section 253 has two parts. The first allows the pres­id­ent to use the milit­ary in a state to suppress “any insur­rec­tion, domestic viol­ence, unlaw­ful combin­a­tion, or conspir­acy” that “so hinders the execu­tion of the laws” that any portion of the state’s inhab­it­ants are deprived of a consti­tu­tional right and state author­it­ies are unable or unwill­ing to protect that right. Pres­id­ents Dwight D. Eisen­hower and John F. Kennedy relied on this provi­sion to deploy troops to deseg­reg­ate schools in the South after the Supreme Court’s land­mark decision in Brown v. Board of Educa­tion.

The second part of Section 253 permits the pres­id­ent to deploy troops to suppress “any insur­rec­tion, domestic viol­ence, unlaw­ful combin­a­tion, or conspir­acy” in a state that “opposes or obstructs the execu­tion of the laws of the United States or impedes the course of justice under those laws.” This provi­sion is so baff­lingly broad that it cannot possibly mean what it says, or else it author­izes the pres­id­ent to use the milit­ary against any two people conspir­ing to break federal law.

Who decides when the condi­tions for deploy­ment have been met?

Noth­ing in the text of the Insur­rec­tion Act defines “insur­rec­tion,” “rebel­lion,” “domestic viol­ence,” or any of the other key terms used in setting forth the prerequis­ites for deploy­ment. Absent stat­utory guid­ance, the Supreme Court decided early on that this ques­tion is for the pres­id­ent alone to decide. In the 1827 case Martin v. Mott, the Court ruled that “the author­ity to decide whether [an exigency requir­ing the mili­tia to be called out] has arisen belongs exclus­ively to the Pres­id­ent, and . . . his decision is conclus­ive upon all other persons.”

However, while this preced­ent might prevent judges from second-guess­ing whether the pres­id­ent is allowed to invoke the Insur­rec­tion Act in response to a given situ­ation, the Supreme Court clari­fied in Ster­ling v. Constantin (1932) that courts may still review the lawful­ness of the milit­ary’s actions once deployed. In other words, federal troops are not free to viol­ate other laws or trample on consti­tu­tional rights just because the pres­id­ent has invoked the Insur­rec­tion Act.

Is invok­ing the Insur­rec­tion Act the same as declar­ing martial law?

The Insur­rec­tion Act does not author­ize martial law. The term “martial law” has no estab­lished defin­i­tion, but it is gener­ally under­stood as a power that allows the milit­ary to take over the role of civil­ian govern­ment in an emer­gency. By contrast, the Insur­rec­tion Act gener­ally permits the milit­ary to assist civil­ian author­it­ies (whether state or federal), not take their place. Under current law, the pres­id­ent has no author­ity to declare martial law.

How has the Insur­rec­tion Act been used in the past?

The Insur­rec­tion Act has been invoked numer­ous times through­out Amer­ican history for a vari­ety of purposes. Pres­id­ents George Wash­ing­ton and John Adams used it in response to early rebel­lions against federal author­ity. Pres­id­ent Abra­ham Lincoln invoked it at the start of the Civil War, and Pres­id­ent Ulysses Grant used it to crush the first incarn­a­tion of the Ku Klux Klan in the 1870s. Several other pres­id­ents, includ­ing Andrew Jack­son, Ruther­ford Hayes, and Grover Clev­e­land, have deployed troops under the Insur­rec­tion Act to inter­vene in labor disputes, invari­ably on the side of employ­ers. Most famously, Pres­id­ents Eisen­hower, Kennedy, and Lyndon B. John­son all invoked the Insur­rec­tion Act during the civil rights move­ment to enforce federal court orders deseg­reg­at­ing schools and other insti­tu­tions in the South.  

When was the Insur­rec­tion Act last invoked?

The Insur­rec­tion Act was last invoked in 1992, when the governor of Cali­for­nia reques­ted milit­ary aid from Pres­id­ent George H.W. Bush in response to civil unrest in Los Angeles that followed the acquit­tal of four white police officers charged with beat­ing Black motor­ist Rodney King. At 29 years and count­ing, this is the longest period the United States has ever gone without an invoc­a­tion of the Insur­rec­tion Act.

No pres­id­ent has unilat­er­ally invoked the Insur­rec­tion Act against a state’s wishes since Lyndon John­son did so to provide protec­tion for civil rights activ­ists in Alabama march­ing from Selma to Mont­gomery in 1965.

How should the Insur­rec­tion Act be reformed?

The lack of clear stand­ards within the Insur­rec­tion Act itself, combined with the Supreme Court’s ruling in Martin v. Mott, has created a situ­ation where the pres­id­ent has almost limit­less discre­tion to deploy federal troops in cases of civil unrest. Such unboun­ded author­ity to use the milit­ary domest­ic­ally has always been danger­ous. In the 21st century, it is also unne­ces­sary and unten­able. The United States has changed profoundly in the 150 years since the Insur­rec­tion Act was last amended, as have the capab­il­it­ies of state and federal civil­ian author­it­ies and the expect­a­tions of the Amer­ican people. The Insur­rec­tion Act — argu­ably the most potent of the pres­id­ent’s emer­gency powers — should reflect those real­it­ies.

To address these concerns, Congress should amend the Insur­rec­tion Act to define more clearly and precisely what situ­ations may trig­ger it. Congress also should estab­lish mech­an­isms for review of the pres­id­ent’s decision that will guard against abuse while still preserving the pres­id­ent’s flex­ib­il­ity in a crisis.