As Cities Burn, Will Trump Invoke The Insurrection Act? Should He?

President Donald Trump has increasingly implored mayors and governors in the cities and states wracked by violence to do their jobs and keep the peace. Whether due to lack of will, to underestimating the coming night’s violence, or to an outright sympathy with the looters — erroneously conflating the legitimate grievances of the protesters with the actions of seditious revolutionaries, nihilists, and crooks — the destruction and loss of life has continued and escalated. As a result, the president strongly suggested he would take charge and send in the military himself.

That the president hinted at the use of federal troops under the Insurrection Act set off a chorus of howls. Senate Minority Leader Chuck Schumer, a Democrat from hard-hit New York, called it “blatantly unconstitutional.” Retired senior officers expressed alarm at the potential use of troops, with two former chairmen of the Joint Chiefs of Staff, Mike Mullen and Martin Dempsey, both outspoken in their criticism.

But do they have a valid complaint? Is the president inappropriately “mobilizing all available federal resources — civilian and military — to stop the rioting and looting,” as Trump said on June 1?

The answer is, “it depends.” The president has the authority to restore order. In the words of the Constitution, Article II, Section 2, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”

But there are complications. In the case of civil unrest, the uncertainty rests on the issue of whether states want federal assistance.

The Insurrection Act and the L.A. Riots

I experienced this firsthand in 1992 when, as a captain in the California Army National Guard, I was called up by the governor, and within a day was patrolling the Crenshaw District in the heart of the destruction, amid columns of smoke rising from looted stores and burning cars. For a more detailed account of my 18 days on active duty during the L.A. riots, see “What I Learned About Civil Unrest During The Los Angeles Riots 25 Years Ago” in The Federalist.

While my deployment to assist civilian law enforcement in restoring order started with a call from the governor to state active duty, we were soon brought into federal service when President George H.W. Bush invoked the Insurrection Act and signed Executive Order 12804. This activated Operation Garden Plot, the Department of Defense’s standing Civil Disturbance Plan.

By the fourth day of the riots, on May 2, 3,500 federal troops — 2,000 active duty Army and 1,500 U.S. Marines — joined the 10,000 California Army National Guard members on the streets of Los Angeles. Of note, then-Gov. Pete Wilson requested federal assistance. (In 2007, I retired as the California National Guard’s Deputy J-1, personnel, with the rank of lieutenant colonel.)

Federal troops had last been used to restore order in the continental United States in the aftermath of the riots set off by the assassination of civil rights leader Martin Luther King Jr. in 1968. But the Insurrection Act itself has been invoked at least 19 times since its inception in 1807 — on average, every 11 years, by 11 presidents.

The Insurrection Act’s history and its possible use in the current situation bears discussion.

Does the President Need Permission from State Leaders?

The Constitution, Article I, Section 8, provides that Congress has the power “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” But Congress isn’t always in session, and while it appropriates money for the military, including the “Militia” — the National Guard is the organized militia today — it isn’t always capable of acting with speed.

That’s one reason Congress passed the Calling Forth Act of 1792 and then the Insurrection Act in 1807, subsequently amending it twice — in 1861 to meet the challenge of the Civil War and in 1871 to allow federal troops, including the Militia when federalized, to protect newly freed slaves from terrorism by the Ku Klux Klan by enforcing the 14th Amendment’s Equal Protection Clause.

There is some dispute as to whether the president can invoke the Insurrection Act without the request from a state’s governor or legislature. In 2007, as part of the National Defense Authorization Act, the Insurrection Act was amended to allow the president to use military forces to enforce the law and restore order, but all 50 governors protested the move, and the amendment was repealed some 15 months later. That said, the act has been used without gubernatorial consent by both Dwight D. Eisenhower and John F. Kennedy to enforce federal court rulings on civil rights. This was allowed under the 1871 amendment to the Insurrection Act.

This opens an interesting constitutional question: Could President Trump invoke the Insurrection Act without permission from a state’s leadership? The Posse Comitatus Act, passed in 1878, marked the official end of the Reconstruction Era, with growing Southern resentment over the continued stationing of federal troops in the aftermath of the Civil War. Posse Comitatus provides for criminal penalties for anyone who “willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws” — “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.”

The Insurrection Act is, of course, one of those cases authorized by an act of Congress, and while it generally requires state consent, it does allow the president to enforce federal law. Thus, the question becomes when a state governor refuses to use appropriate law enforcement assets, including the National Guard, to quell urban violence, is there justification to invoke the Insurrection Act to ensure equal protection under the 14th Amendment?

Maybe. The danger is that if the invocation is challenged in court and the president loses the case, his officers could be subject to penalties under the Posse Comitatus Act, which include fines and imprisonment.

Two issues remain regarding the use of federal troops to restore order: the institutional military’s general reluctance to do so, and the chain of command.

The Military’s Reluctance

A practical reason for the passage of the Insurrection Act in 1807 was the experience of the Whiskey Rebellion in 1794 and the building up and later disbanding of a national standing army.

When federal tax agents were attacked in Pennsylvania in the course of collecting federal alcohol taxes, President George Washington moved to restore order. The problem was that the active-duty army of the day consisted of a few hundred troops out on the Western frontier keeping an eye on the restive Native American tribes.

This forced Washington to rely on the Pennsylvania militia, the challenge being that the governor of Pennsylvania didn’t want to use his militia to enforce federal revenue laws. That governor knew this would be a good way to lose reelection. He was also a Jeffersonian Republican and deeply suspicious of the Federalists’ support for a stronger central government, including a standing army. It took months, but eventually Washington convinced Pennsylvania Gov. Thomas Mifflin to agree to have the militia federalized to put down the rebellion, which then quickly collapsed.

Only four years later, in the wake of the French Revolution, the U.S. found itself in an undeclared “Quasi-War” with France. Jefferson’s Democrat-Republicans were sympathetic to the French, while the Federalists tilted toward Great Britain. As part of the response to counter increasing French belligerence, the U.S. Navy was built up and a standing army, beyond the needs of the frontier, was created, with Alexander Hamilton its de facto chief. The U.S. Army grew to more than 4,000 personnel.

But the national Army was also seen as an instrument of the Federalist Party, and when Thomas Jefferson defeated President John Adams in 1800, plans to expand the Army were quickly abandoned, and the Army was largely defunded. This seared a lesson into the professional Army’s mind: If it was perceived as a political instrument, its national legitimacy and its existence as an institution would be threatened.

Thus, when the Insurrection Act was passed in 1807, the Army had only 2,775 soldiers, leaving Jefferson with fewer military options, unless he could rely on the militia.

The lesson of the disbandment of Hamilton’s Federalist Army is likely behind some of the reluctance expressed today by retired general officers to deploy the U.S. Army to assist local law enforcement. Their public reservations don’t serve the president, but they do serve to preserve the institution of the U.S. Army. And, the generals might argue, with tension rising with China, the U.S. Army and other branches of the armed forces must retain bipartisan support if they are to maintain deterrence.

Of course, the U.S. Army was used five times in seven places under the Insurrection Act in the 1950s and ’60s. This was often against the wishes of Democratic governors opposed to desegregation. Somehow the U.S. Army maintained bipartisan support during the Cold War, more or less through the end of the Vietnam War, when the consensus began to erode, though not because of these interventions.

The Chain of Command

The last practical consideration in the invocation of the Insurrection Act is that of the chain of command.

During the 1992 L.A. riots, the 10,000 National Guard soldiers called out by California Gov. Wilson initially remained under the command of the 40th Infantry Division commander, a National Guard major general. But as the urban unrest seemed to worsen while the Guard was being deployed, the mayor of Los Angeles called for more troops, and the governor appealed to President George H.W. Bush.

When Bush invoked the Insurrection Act and sent 3,500 federal troops to augment the National Guard, peace had already been largely restored to the streets. Even so, the active duty commander of the 7th Infantry Division out of Fort Ord assumed command of the overall force of the U.S. Army, Marines, and California Army National Guard.

There were two consequences as the result of the active duty assumption of command: Morale in the ranks of the National Guard plummeted, and the federal takeover, just as the streets had been calmed, smacked of extreme disrespect.

The active-duty lawyers — Judge Advocates General — erroneously assumed that the Posse Comitatus Act applied to the newly federalized Guard troops. This shouldn’t be a surprise, since JAGs, as with their civilian attorney counterparts, often see their role as saying “no.” Generally, nobody gets in trouble when they do nothing.

Furthermore, the JAG culture in the military is decidedly to the left of the combat arms branches, perhaps resulting in a deeper institutional reluctance regarding the mission to support local law enforcement.

As a result, the close cooperation the Guard was enjoying with the Los Angeles Police Department and Los Angeles County Sheriff’s Department came to an end with new requests to be pre-cleared by the joint command. This pre-clearance for requests by law enforcement took so long as to render the missions irrelevant. As a result, the Guard largely ignored the order that essentially neutered the reason for their deployment. After all, it was our city that had been burned and looted, and our neighbors who had been killed and injured, not our counterparts in the Army and Marines.

Fortunately, the following day, the Army commander reorganized the chain of command. The U.S. Army general was in charge of the newly formed Joint Task Force Los Angeles, consisting of U.S. Army, National Guard, and Marines, while the 40th Infantry Division commander was given command of all Army forces.

This issue is relevant today concerning use of the Insurrection Act in a state where the governor refuses to cooperate with the president. What does an activated National Guard commander do, given that their peacetime commander, when not federalized, is the governor?

Fortunately, after several days of escalating violence, even liberal governors and mayors appeared to have had their fill of the destruction and seem to be allowing law enforcement and the National Guard to do their jobs to start to restore domestic tranquility. Thus, at least for this round of urban unrest, the Insurrection Act isn’t likely to be tested in a new and uncertain way.

That said, a case might be made that Antifa, implicated in the destruction and looting of minority-owned businesses, might be considered today’s KKK. In that case, the Insurrection Act could be invoked in states where governors have been reluctant to move against the domestic terror group and also refuse to ask for federal help.