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1807 Law Is at Center of Trump's Newest Move

Insurrection Act gives the president authority to bring in active-duty troops
By John Johnson,  Newser Staff
Posted Jun 2, 2020 9:55 AM CDT

(Newser) – "If a city or 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," President Trump declared Monday. His ability to do so amid the George Floyd protests centers on something called the Insurrection Act, which dates back to 1807. The details:

  • The act: It gives the president the right to call in active-duty troops (as opposed to reserves in the National Guard) for law enforcement. Typically, this would be done at the request of a governor, but legal experts say a president can do so without such a request, reports NPR.
  • Last time: The act hasn't been invoked much. The last time was in 1992 during the Rodney King riots in Los Angeles, notes NBC News, though that was at the governor's request. A footnote: William Barr happened to be serving as attorney general then, too, under the elder George Bush.

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  • Desegregation: Prior to 1992, the act was most famously invoked during the Civil Rights era. Presidents Eisenhower, Kennedy, and Johnson, for example, called in troops to enforce new civil rights laws in the South and end segregation. Eisenhower notably used the act in Arkansas, over the governor's objections, to integrate schools in Little Rock, reports CNN. The act was also used to quell riots in Detroit in the 1960s.
  • Pushback: Just because the law has been so used in the past doesn't mean today's governors would acquiesce. "I reject the notion that the federal government can send troops into the state of Illinois," said Democratic Illinois Gov. JB Pritzker, per Forbes. A retired law professor tells the Washington Post that states and cities "would fight tooth and nail to keep federal troops out."
  • Where it's murky: A post at JustSecurity.org delves into the legal intricacies with a look at specific provisions of the act. In broad strokes, the 1878 Posse Comitatus Act bars the president from summoning federal troops for domestic law enforcement, and the Insurrection Act provides the biggest loophole to that. But it's unclear whether all this is subject to judicial review, writes Mark Nevitt: "Courts have historically been reluctant to wade into these complex federalism and separation of powers waters and will certainly be wary of providing specific guidance."
  • One view: Yep, Trump can invoke the act without the permission of governors or Congress, says Stephen Vladeck of the University of Texas Law School. "I think there's a reason why the statute allows him to act even if states don't ask him," Vladeck tells the Post. "I don't think the situation is as dire as the drafters of the statute might have contemplated, but invocation of the Insurrection Act here seems much less controversial to me as a legal argument than many of Trump's other actions."
(Read more President Trump stories.)

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