What Does It Permit?
The Insurrection Act is the most significant exception to the Posse Comitatus Act. Despite its name, its reach is not limited to insurrections. The Act allows the president to deploy active-duty armed forces and to federalize the National Guard for the following purposes:
- to suppress an insurrection in a state, if assistance is requested by the state legislature (or, if the legislature is unable to convene, the state’s governor) (10 U.S.C. § 251);
- to enforce federal law or suppress a rebellion against U.S. 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 federal law “by the ordinary course of judicial proceedings” (10 U.S.C. § 252); or
- to suppress any “insurrection, domestic violence, unlawful combination, or conspiracy” (10 U.S.C. § 253) that—
- interferes with the execution of state or federal law in a way that deprives a class of people of constitutional rights, and state authorities are unable or unwilling to enforce those rights; or
- opposes or obstructs the execution of, or impedes the course of justice under, federal law.
When federalized under the Insurrection Act, National Guard forces (along with active-duty armed forces) may be deployed in any state or territory of the United States. No violation of one state’s sovereignty by another state occurs, as the National Guard is operating as part of the federal armed forces.
Because the statute authorizes the president to call up the “militia,” some have argued that it provides authority for the president to essentially deputize private militias and other groups as federal forces. The term “militia” is defined, under the same title as the Insurrection Act, to include all able-bodied males between the ages of 17 and 45 years of age who are, or who have made a declaration of intention to become, U.S. citizens, as well as female U.S. citizens who are members of the National Guard.
The Insurrection Act has not previously been used for immigration enforcement or border security. Its past uses (approximately 30 of them, as set forth in a guide published by Brennan Center) mostly fall within four categories:
- Suppression of rebellions against state or federal authority (e.g., the Whiskey Rebellion and the Civil War);
- Suppression of labor movements/breaking strikes (e.g., the Pullman Strike of 1894);
- Protection of civil rights, including those of African-Americans during both Reconstruction and the Civil Rights Movement and those of Chinese immigrants in the late 19th century; and
- Quelling civil unrest and, particularly in the late 1960s, “race riots.”
The most recent exercise of the Insurrection Act occurred over 30 years ago, when the Governor of California asked President George W. Bush to deploy troops to quell civil unrest that had erupted after a jury acquitted police officers charged in the beating of Rodney King.
What Are the Limitations /Potential Legal Challenges?
The Brennan Center has called for reform of the Insurrection Act because it lacks the necessary safeguards against abuse. That said, there are a number of ways in which an exercise of the law could be challenged.
- In 1827, the Supreme Court held in Martin v. Mott that the Insurrection Act did not permit judicial review of a president’s decision to deploy troops. In other words, as a general rule, the president alone determines whether the criteria for deployment set forth in the law have been met. However, there are important caveats to this ruling:
- Language in this and later decisions (most notably, the 1932 case Sterling v. Constantin) suggested that there might be a “bad faith” exception to the general rule of non-reviewability, and that courts may step in if the president has exceeded a “permitted range of honest judgment.”
- Congress has extensively amended the law since the 1827 decision, and courts could conclude that the revised law—which includes much more detailed criteria for deployment—allows for judicial review in at least some circumstances beyond the “bad faith” scenario.
- If the courts determine that they may review whether deployment criteria are met, they should adopt long-standing Office of Legal Counsel interpretations that construe those criteria narrowly, in keeping with constitutional principles and tradition. According to these interpretations, invocation of the Insurrection Act must be a “last resort,” occurring only when a state requests assistance to put down an insurrection; when necessary to enforce a federal court order; or when “state and local law enforcement have completely broken down.”
- Even if courts determine that they may not review whether the legal criteria for deployment have been met, Supreme Court precedent strongly suggests that they may review whether the military’s actions pursuant to deployment are lawful. As the Court affirmed in Sterling: “What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.”
- The Insurrection Act does not (and could not) authorize the violation of constitutional rights. For instance, if soldiers deployed under the Insurrection Act searched homes without a warrant or an applicable exception to the Fourth Amendment’s warrant requirement, courts could intervene. Prolonged military detention under the Insurrection Act would similarly be subject to constitutional challenge.
- If there is a conflict between the Insurrection Act and other federal laws, the later-enacted and more specific law should prevail (in accordance with standard rules of statutory interpretation). Given the age and sweeping scope of the Insurrection Act, most federal laws will be later-enacted and more specific. The 1948 federal law restricting the presence of military personnel at polling stations, for instance, should be read as a limitation on deployment under the Insurrection Act.
- A 1975 Department of Justice memorandum suggested that actions taken under the Insurrection Act must be “reasonable under the circumstances.” Although the Insurrection Act is generally understood as an exception to the Posse Comitatus Act, the same Department of Justice memorandum questioned whether the law authorizes arrests, as opposed to temporary detentions of civilians until such time as they can be turned over to civilian authorities.
- Professor William Banks has made the case that using federal armed forces to quell domestic violence without a state’s request for assistance would violate Article IV of the Constitution, which requires the United States to protect states against “domestic Violence . . . on Application of the [state] Legislature, or the [state] Executive (when the Legislature cannot be convened).”