President Donald Trump on Monday threatened to invoke the Insurrection Act of 1807, in its current form, to quell the uprisings that have resulted as an outgrowth from demonstrations and protests over the killing of George Floyd. However, while it has been reported that Trump had planned to invoke the Act during his speech Monday evening, the president has apparently not issued a formal proclamation to exercise his power under the Act, as required by the text of the statute.
Speaking from outside the White House in the immediate aftermath of what appeared to be peaceful protestors being dispersed with tear gas and rubber bullets, the president said that governors must “establish an overwhelming law enforcement presence” until the violence has been brought under control, promising to deploy the U.S. military to “quickly solve the problem,” if necessary.
Last legally invoked during the 1992 Los Angeles riots, the Insurrection Act does empower the president to authorize the use of military force in a law enforcement capacity on domestic soil. However, under the text of the statute, the president can only invoke the Insurrection Act through a formal proclamation – which he did not do Monday as of press time.
Critically, 10 U.S.C. § 254 states that “Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time” (emphasis ours).
This point was reiterated by University of Texas Law professor Steve Vladeck.
“Trump says he’s ‘strongly recommended to every governor’ that they use state National Guard troops to quell disorders. Does *not* invoke the Insurrection Act to call out federal troops, at least in states. Not clear what authority he’s relying on to use federal troops in D.C.,” Vladeck wrote. “To emphasize, the Insurrection Act requires a formal proclamation in order to be invoked. Trump *threatened* to use it if state National Guards aren’t effective, but vague threats and ambiguous speeches don’t cut it. He wants to look tough without actually taking responsibility.”
The Insurrection Act was originally conceived as a congressionally controlled power that was gradually over-delegated and eventually usurped by the executive. Until Trump’s emergence, political and historical norms have been the main constraint on presidential abuses of power granted by the act. But all that may be on the precipice of change.
As Vladeck pointed out in an op-ed for The Atlantic last year, even if Trump were to hypothetically call upon the military absent any reasonably sufficient basis for invoking the act, any checks on his power would likely be ineffective until after the fact. Even then, if he were found to have violated the Posse Comitatus Act (by unlawfully invoking the Insurrection Clause), it would be a violation of federal criminal law, meaning it would be left in the hands of the current attorney general and prosecutors at the Department of Justice.
It remains unclear when Trump may actually exercise the power to invoke the Insurrection Act. Here’s more of his Monday speech:
I am taking immediate presidential action to stop the violence and restore security and safety in America. I am mobilizing all available federal resources — civilian and military — to stop the rioting and looting, to end the destruction and arson, and to protect the rights of law-abiding Americans, including your Second Amendment rights. Therefore, the following measures are going into effect immediately:
First, we are ending the riots and lawlessness that has spread throughout our country. We will end it now. Today, I have strongly recommended to every governor to deploy the National Guard in sufficient numbers that we dominate the streets. Mayors and governors must establish an overwhelming law enforcement presence until the violence has been quelled.
If a city or a state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.
I am also taking swift and decisive action to protect our great capital, Washington, D.C. What happened in this city last night was a total disgrace. As we speak, I am dispatching thousands and thousands of heavily armed soldiers, military personnel, and law enforcement officers to stop the rioting, looting, vandalism, assaults, and the wanton destruction of property.
Editor’s note: this report has been updated.
[Featured image by Chip Somodevilla/Getty Images.]
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