The Insurrection Act
The Insurrection Act
by Paul Engel
- What power does the Insurrection Act give to the President?
- When can the President use the Insurrection Act?
- Is the Insurrection Act constitutional?
I’ve heard a lot of talk lately about the President invoking the Insurrection Act and martial law. In an effort to keep us focused on facts, I thought it would be a good idea to review the Insurrection Act, see what powers are legally delegated to the United States, and hopefully dispel some rumors you might have heard.
If we’re going to talk about insurrection, we had better define it first.
A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy. insurrection is however used with such latitude as to comprehend either sedition or rebellion.
Insurrection – Webster’s 1828 Dictionary
It seems only logical that the Insurrection Act must deal with a substantial uprising against either the civil or political authority. In other words, not just a few people, because that would be sedition. Also, it cannot be a rebellion unless there is an attempt to replace the government. Keep these facts in mind as they will become important later.
The Insurrection Act is found in Title 10, §§ 251-255 of the United States Code. Sections 254 and 255 are more administrative aspects of the law.
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.
Section 254 requires the President to immediately order the insurgents to disperse and go home.
For purposes of this chapter, the term “State” includes Guam and the Virgin Islands.
Section 255 includes the territories Guam and the Virgin Islands when referring to states in this law.
Now let’s get into the meat of the act.
- 251 – Federal aid for State governments
Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.
This is Congress making law to exercise the power delegated to the United States in Article IV, Section 4 of the Constitution, specifically the protection from domestic violence.
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
U.S. Constituiton, Article IV, Section 4
The United States is required to guarantee each state has a republican form of government.
A commonwealth; a state in which the exercise of the sovereign power is lodged in representatives elected by the people. In modern usage, it differs from a democracy or democratic state, in which the people exercise the powers of sovereignty in person.
Republic – Webster’s 1828 Dictionary
Article IV, Section 4 also requires that the United States protects each of the states against invasion and domestic violence only when the state asks for it. Generally, it would be the state’s legislature who applies to the United States for assistance. If the legislature cannot be convened, then the state’s governor can apply. Although there were many calls for the President to send in the militia during the riots this summer, no state requested the United States do so. Therefore, the President did not have legal authority to under §251.
However, there’s another problem. Article VI, Section 4 only authorizes the United States to protect a state from invasion or domestic violence, not insurrection. Nowhere does the Constitution grant the federal government the authority to protect a state against an insurrection. While most of us probably think an insurrection would include domestic violence, that’s not necessarily the case. Since the Constitution does not delegate this power to the United States nor does it prohibit it to the states, this power remains with the states.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
U.S. Constitution – Amendment X
So when Congress wrote and passed §251 and then President Eisenhower signed it, they violated the Constitution. More about this later.
- 252 – 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.
There were times during the riots that the President sent in federal law enforcement to protect federal buildings. If the President deemed it necessary, he could have used the militia and the armed forces to protect those properties, and enforce federal law under §252. Some of you maybe arguing that this would be a violation of the Posse Comitatus Act.
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
18 USC 1385 – “Posse Comitatus Act”
If the President had used the Army or Air Force to enforce the laws of the United States, if it was done under the Insurrection Act, that is an act of Congress and therefore legal.
- 253 – Interference with State and Federal law
The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—
(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.†
10 USC §253
As we’ve already seen, the Constitution only authorizes the United States to protect the states against invasion or domestic violence when asked by the state. And since the President is tasked with enforcing the laws of the United States, we recognize that Congress legally established when the President could use the militia and armed forces to do so. We’ve also seen Congress illegally expand the powers of the United States to protect the states against insurrection in §251. Whereas in §251 the President had the power to assist states only if they asked for it, now Congress wants him to be able to send in armed forces based solely on him deeming it necessary. This not only exceeds the powers delegated to the United States by the Constitution, but tramples its duty under Article IV, Section 4 to insure that each state has a republican form of government. How can sovereign power be lodged in representatives the people have elected if an outside entity has the “legal” authority to step in and overrule them?
That’s not all. Notice clause 1 in §253 claims to give the President the authority to step in not only if federal laws cannot be enforced, but states laws as well, if those laws protect rights named in the Constitution. It is one thing to use the armed forces of the United States to enforce federal laws, including the Constitution. But to authorize the President to unilaterally invade a state against their will is another thing altogether. Even if the pretext is that state laws to protect constitutionally protected rights are not being enforced, there is no language in the Constitution that delegates that type of power to the United States.
I understand the desire to do something when people’s rights are not being protected, but it’s not the role of the federal government to control the governments in our states; that is our job. It seems easier to get someone else to do the hard work of controlling our employees in state government, but hiring a bully to do what we are unwilling to do ourselves is not only cowardly, but dangerous. The bully that’s strong enough to get others to do what you want is strong enough to force you to do what others want. When the states ratified the Constitution, they created the government of the United States. By expecting the government of the United States to lord power over them, we invert the union that was created in 1787.
You may have noticed that several times in this article I made a distinction between insurrection and domestic violence. The reason is not only simple, but extremely important if we’re to remain a free republic of states. Let me show you Article I, Section 1 of the Constitution of the State of Tennessee.
That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends they have at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.
Constitution of the State of Tennessee, Article I, Section 1
While not every state includes similar language in their constitutions, I believe most of them do. They state that all power is inherent in the people, not in their government, and certainly not in the government of the United States. They also protect the right of the people to alter or abolish their government and replace it with another. The people have an unalienable right to rise up against their civil or political authority, to abolish their government, and to establish a new one as they see fit. In other words, the constitution of most of our states protect the right to a peaceful insurrection. This is a right our Founding Fathers not only recognized, but exercised, when we declared independence from Great Britain.
That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
Sadly, this is a right our employees in Washington, D.C. have forgotten. I applaud any law that protects the rights of the people, but not at the expense of our other rights or our right to live in free and sovereign states.
Even worse is what would happen should the President ever enact §253 of the Insurrection Act. This would in effect be an act of civil war against the states, a breaking of the compact that is the Constitution. It would be the final act of the destruction of the republic I have been warning about for quite some time. The question is, will the people keep their elected employees in check to prevent such an action or not? Will we fight the war against tyranny while we can still do it peacefully? Or are we waiting until the fight must be done with arms on the battlefield?