US President Donald Trump suggested on Monday that he might use federal troops to end the protests that have erupted nationwide following the death of George Floyd, an unarmed black man who was killed in Minneapolis police custody. But to do so, Trump would need to formally invoke rarely used statutes known as the Insurrection Act.
“Mayors and governors must establish an overwhelming law enforcement presence until the violence has been quelled,” Trump said during brief remarks at the White House on Monday.
“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,” Trump said.
Even as Trump was speaking in the Rose Garden, police were firing tear gas to dispel protesters in a public park across the street from the White House, images of which were broadcast live on television.
The demonstrations have been largely peaceful but police in some cities have used force against protesters as well as journalists. Protesters have clashed with police in several areas and journalists have been targeted with rubber bullets or even briefly detained. Many US cities have set curfews.
But to deploy US armed forces into states or cities, Trump would need to issue a formal proclamation that he was invoking a rarely used group of statutes known as the Insurrection Act.
What is the Insurrection Act?
Under the US Constitution, governors generally have the authority to maintain order within state borders. This principle is reflected in a law called the Posse Comitatus Act, which generally bars the federal military from participating in domestic law enforcement.
The Insurrection Act of 1807 creates an exception to the Posse Comitatus Act in permitting the president to send US forces to suppress a domestic insurrection that has hindered the normal enforcement of US law.
Part of the law suggests that states must request help before the federal government can intervene, but other sections do not require approval from a state’s governor or its legislature, according to Robert Chesney, a professor of national security law at the University of Texas.
But a president may invoke the act if it is determined that circumstances render it impossible to enforce US law properly or that citizens’ rights are being infringed.
“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.”
How has the Insurrection Act been used?
The Insurrection Act has been invoked on dozens of occasions through US history. President Dwight Eisenhower sent the military to Little Rock, Arkansas, in 1957 to enforce the desegregation of schools against the will of the governor. It was later also used by president John F. Kennedy to ensure the protection of civil rights in the early 1960s.
But since the civil rights movement of the 1960s, the use of the Insurrection Act has become exceedingly rare. It was last used in 1992 when the acquittal of four Los Angeles police officers in the brutal beating of black motorist Rodney King – filmed and witnessed by millions – led to days of deadly riots.
Trump’s attorney general, William Barr, was serving in the same role at that time under then president George H. W. Bush.
Can a court strike down Trump’s application of the law?
Chesney said any successful legal challenge to Trump’s use of the law was “very unlikely”, noting that courts have historically been reluctant to second-guess a president’s military declarations.
“The law, for all practical purposes, leaves this to the president with very little judicial review with any teeth,” he said.
But the court of public opinion is another matter.
Stephen Vladeck, a national security and constitutional law expert at the University of Texas at Austin, said on Twitter that the Insurrection Act had not been used since 1992 “largely because domestic use of the military is generally unpopular”.
“It’s hard to imagine courts second-guessing factual determinations by the President that circumstances warrant use of the military to restore order,” Vladeck wrote.