Is That Trumpian Threat Legal?

Our dictator-in-waiting has threatened the protests and the state governments with federal intrusion by invoking the Insurrection Act of 1807……and how many know what it is?

Let’s look at the Act of 1807…..

The Insurrection Act of 1807 is a United States federal law (10 U.S.C. §§ 251255; prior to 2016, 10 U.S.C. §§ 331–335) that empowers the president of the United States to deploy U.S. military and federalized National Guard troops within the United States in particular circumstances, such as to suppress civil disorder, insurrection and rebellion.

The act provides the “major exception” to the Posse Comitatus Act, which limits the use of military troops under federal command within the United States for law enforcement purposes.  The president must firstly issue a proclamation ordering the insurgents to immediately disperse (per 10 U.S.C. § 254).

The Act empowers the U.S. president to call into service the U.S. Armed Forces and the National Guard:

  • when requested by a state’s legislature, or governor if the legislature cannot be convened, to address an insurrection against that state (§ 251),
  • to address an insurrection, in any state, which makes it impracticable to enforce the law (§ 252), or
  • to address an insurrection, domestic violence, unlawful combination or conspiracy, in any state, which results in the deprivation of Constitutionally-secured rights, and where the state is unable, fails, or refuses to protect said rights (§ 253).

The 1807 Act replaced the earlier Calling Forth Act of 1792, which had allowed for federalization of state militias, with similar language that allowed either for federalization of state militias or use of the regular armed forces in the case of rebellion against a state government.

Here is what all them fuss is about…..

“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.
  • 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 Postthat states and cities “would fight tooth and nail to keep federal troops out.”
  • Where it’s murky: A post at 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.”

To make it a bit simpler…..there are 5 questions that need answering….

  1. Can the President use the military to respond to domestic unrest?
  2. What is the Insurrection Act and its substantive and procedural provisions?
  3. How does the military actually interpret its role in civil disturbance operations?
  4. What other legal authorities could potentially authorize a military role in domestic law enforcement operations?
  5. What are the military’s rules for the use of force in such a scenario—i.e. does looting justify shooting?

The President and the Domestic Deployment of the Military: Answers to Five Key Questions

Five things to look at with this threat from Donald the Orange…..

If you feel scholarly then maybe a more in-depth look at these laws would be good for you to understand…..(there are forms in this and filling out them is not supported)……

Click to access R42659.pdf

All this may be a moot point….for this issue may just be another of Trump’s grandstanding for the cameras.

Learn Stuff!

I Read, I Write, You Know

“lego ergo scribo”

2 thoughts on “Is That Trumpian Threat Legal?

    1. Prez from the past have used the power and Trump is more egocentric than the others….so he could and will if he feels he has to….chuq

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