The Insurrection Act controls when the President can use components of the U.S. military for domestic law enforcement purposes. The Insurrection Act is one of the major exemptions to longstanding statutes but also the distinctive American tradition not to involve the military in domestic law enforcement. One of the characteristics of America is not to have the military patrol communities, but rather to have local law enforcement doing it. Actions taken under the Insurrection Act are exempt from the provisions of the Posse Comitatus Act. The courts have held that the Posse Comitatus Act does not apply to guard members called to duty by the governor. This means that governors may use their own guard members or guard personnel from neighboring states to perform law enforcement functions without violating the act.
Early in the history of the Republic, the delegates to the Constitutional Convention and the members of the subsequent Congresses understood that the President required power to execute the laws of the land. Under authority of the Militia Clause, Congress enacted the Militia Act of 1792 and the subsequent Insurrection Act of 1807 to provide the President with authority to call forth the militia of the states to execute the laws and suppress insurrections.
New language found its way into the Insurrection Act as a consequence of the Civil Rights Act of 1871. In many southern states after the Civil War, the Klu Klux Klan and other disgruntled groups interfered with public order. When Republican North Carolina Governor William Woods Holden called out the state militia against the Klan in 1870, the result was a local backlash culminating with his impeachment in 1871. In response to the Klu Klux Klan and the broader conditions of lawlessness throughout the South, Congress passed the Civil Rights Act. The relevant section of the Act (10 USC § 333) reads as follows:
"That in all cases where insurrection, domestic violence, unlawful combinations, or conspiracies in any State shall so obstruct or hinder the execution of the laws thereof, and of the United States, as to deprive any portion or class of the people of such State of any of the rights, privileges, or immunities, or protection, named in the constitution and secured by this act, and the constituted authorities of such State shall either be unable to protect, or shall, from any cause, fail in or refuse protection of the people in such rights, such facts shall be deemed a denial by such State of the equal protection of the laws to which they are entitled under the constitution of the United States: and in all such cases …it shall be lawful for the President, and it shall be his duty to take such measures, by the employment of the militia or the land and naval forces of the United States, or of either, or by other means, as he may deem necessary for the suppressions of such insurrection, domestic violence, or combinations…"
The Insurrection Act permitted the President to call the militia or the National Guard into Federal service to suppress insurrections or to enforce the law, including when State authorities were unable or unwilling to secure the constitutional rights of their citizens. Rarely in the history of the Nation had the National Guard been Federalized under the provisions of the Insurrection Act. There were ten occasions since World War II when the National Guard was Federalized under the provisions of the Insurrection Act, and that was largely done to enforce and protect the civil liberties or the Federal laws that guaranteed civil liberties in the States that were not affording those civil liberties or violating Federal law.
In 1957, President Dwight D. Eisenhower relied on the Insurrection Act to remove obstructions of justice in respect to enrollment and attendance at public schools in the Little Rock, Arkansas. Likewise, President John F. Kennedy invoked the Insurrection Act in 1962 and 1963 to send federal troops to Mississippi and Alabama, respectively, to enforce constitutionally protected civil rights threatened by local reactions to desegregation effort.
As recently as 1992, President George W. Bush relied upon the Insurrection Act to federalize much of the California National Guard and employ an additional force of approximately 4,000 active Army and Marine troops to suppress the Los Angeles Riots, which had flared up as the result of the controversial acquittal of white police officers who used force against an African American suspect.
During the 1992 Los Angeles, California riots soldiers and airmen from the California Army and Air National Guard were activated for state duty to quell the riots, and help the police restore order. Guardsmen were quickly committed into areas where they had to contend with considerable shooting, fires, and looting. The riots were declared a national emergency by President George H.W. Bush, and under the provisions of the Insurrection Act he deployed Title 10 military assets to assist in quelling the riots. The declaration insurrection was critical because it rendered Posse Comitatus moot for the purposes of allowing Title 10 forces to secure the streets, suppress looting and rioting, and in general enforce the law in Los Angeles. As a part of his declaration, the President also federalized the National Guard forces involved, in order to bring them under a unified command system.
From 1871 to 2006, the Insurrection Act remained largely unchanged. By 2006, the Insurrection Act was actually comprised of five sections within Title 10 of the United States Code. Each of the individual code sections prescribed the situations in which the President could have invoked the Insurrection Act of 10 U.S.C. §§ 331-335. The critical section is Setion 332:
"Sec. 332. Use of militia and armed forces to enforce Federal authority - 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."
Before 2006, the President had multiple legal bases available to authorize his use of federal military forces in a variety of law enforcement and natural disaster circumstances. The amended law included several conditions that must be satisfied before the President could authorize the use of federal forces. The most important of these conditions was a showing of lawlessness in a state that sufficiently demonstrated the state’s inability to enforce the laws and maintain public order. Instances in which a state cannot enforce the laws and maintain public order are rare.
Nevertheless, Congress amended the Insurrection Act in 2006 to create the Enforcement of the Laws to Restore Public Order. This statute stirred controversy as it arguably represented an unwarranted expansion of Presidential power. Additionally, while the statute attempted to address the kind of lawlessness seen in New Orleans immediately following Hurricane Katrina in 2005, the provision arguably offered no improvement over the Insurrection Act in instances of lawlessness or the Stafford Act in instances of disaster. The 2006 Act made it easier for the President to invoke the Insurrection Act in cases well short of insurrection.
Without ever having been invoked, and in the face of strong opposition, the Enforcement of the Laws to Restore Public Order was repealed on January 28, 2008 and the previous Insurrection Act was restored. It was prudent to repeal this legislation. Moreover, future laws and policies to improve disaster response across the whole-of-government and the private sector should be consistent with the principles in the 2008 National Response Framework, which advocates tiered response rather than a primarily federal response in most instances. The rare instances of catastrophic disaster that might require the President to shortcut tiered response and assume federal control at the outset of the situation should be clearly defined in law.
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