The Insurrection Act: A Civics Lesson in Power, Law, and Order

INTRO

Hey everyone. Welcome back. 

There is a well known phrase that says may you live in interesting times. Although the origin of the phrase is under debate, it is widely accepted to be a sarcastic quip - a curse, if you will - that the quote unquote interesting times actually means periods of turmoil or difficulty. And I do not know about you, dear listeners, but it sure feels as though we are living through interesting times. One side effect of said interesting times is a renewed coverage of history - albeit mostly legal history - by news journalists. Several articles covering current events have evoked laws, acts, and statutes of years past which has many folks wondering exactly how said laws apply to our present moment. On a whim, I asked you all on the social media channels whether you thought it was worth taking a wee bit of a detour in normal coverage to dive into some of this legal history - a more civics focused episode if you will - and the answer was an overwhelming yes. So this episode marks the first of at least a handful of episodes dedicated to exploring historic laws and court cases and trying to make sense of them in today’s environment. 

One of the laws landing in a lot of headlines and news articles these days is the Insurrection Act. Generally referred to as the Insurrection Act of 1807, the law in question grants the president limited authority to call in the military to suppress a rebellion or to enforce the law when it is otherwise not possible through other means. Of course, it should be no surprise to learn there is a nuanced, complex story behind its origins and how its been deployed over the years. So this week, I am diving into the history of the Insurrection Act. What is it? How did it originate? And how has it been used throughout American history? 

Grab your cup of coffee, peeps. Let’s do this. 

Although many journalists refer to the Insurrection Act of 1807, the origins of the law date back to 1792 when Congress passed the Militia Acts on May 2nd and May 8th. The first part of the Militia Act granted the president the authority to quote: “call forth such number of the militia of the state or states most convenient to the place of danger or scene of action as he may judge necessary to repel such invasion, and to issue his orders for that purpose, to such officer or officers of the militia,” end quote. However, it is important to remember the context surrounding the decision to grant a president such authority. As historian Lindsay Chervinsky outlines in her book about George Washington’s presidency, The Cabinet, Congress understood that the new nation was subject to foreign attack and that the president may need authority to act quickly to protect the nation’s safety quote: “the law recognized that a foreign country might invade the nation, or a domestic rebellion might crop up during congressional recess. In the case of a domestic crisis, the president could present the facts to associate justice of the Supreme Court or a district judge,” end quote. 

There was also some motivation from members of Congress who were looking for ways to prevent another Shay’s Rebellion. I mentioned this during the early years of the podcast when I explored the Articles of Confederation, but Shays Rebellion was in essence a violent uprising over the attempt at debt collection in the state of Massachusetts. Led by Daniel Shays and his band of supporters called regulators, those involved refused to pay taxes and further prevented government officials from discharging their duty to collect taxes. This uprising convinced many Americans that there needed to be a stronger central authority and highlighted in stark detail just how weak the national government was under the Articles of Confederation. Although the first government established after the American Revolution was built to be intentionally weak and more of an alliance between the states, Americans soon realized that there were certain situations that called for higher central authority and the rebellion helped increase demands for changes to the articles providing more authority and power to the government which eventually led to the Constitutional Convention. 

The early republic was also dealing with domestic uprisings in the form of neighboring indigenous tribes. As the country moved west in a quest to explore and expand upon the frontier, residents kept running up against what they saw as hostile forces of local tribes. Thus, there was a desire to create a mechanism that provided for a quick response in times of turmoil or upheaval. In this sense, the Militia Acts - which were amended several times and evolved into what we now refer to as the Insurrection Act - were a product of the time. The United States was still a country in its infant stages and trying to determine what it could and could not control or what it did or did not have oversight or responsibility for. It was a time before phones, national television, or the internet when communication was incredibly slow and when members of Congress were often at least a few days if not weeks away from the capitol during times of recess. When considered in this context it makes sense why such a law was passed by the same body who were otherwise highly suspicious of granting any one person significant or unlimited authority. It is also worth mentioning that the original Militia Acts were enacted with a built-in expiration date of two years which by extension limited the President’s authorization to use such power unless renewed or otherwise extended by Congress, which was done when it passed the Militia Act of 1795. Yet both of these laws limited the President’s power to deploying state militias. 

This power was altered in 1807 when President Thomas Jefferson sought enhanced power to deploy federal troops when state militias proved either unwilling or unable to squash domestic rebellions. In the case of Jefferson, his motivation behind seeking the additional authority came in response to the Burr Conspiracy - when former Vice President Aaron Burr was charged with treason for allegedly attempting to establish a separate government in the west. Jefferson felt hamstrung in his pursuit of Burr since the Constitution did not permit the President the authority to deploy the U.S. military against a domestic rebellion. Thus, in December 1806 Jefferson explicitly asked Congress for such permission and signed the Insurrection Act into law on March 3rd, 1807 - ironically enough about a week after Burr’s capture. 

The statute is short and to the point, quote: “That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect” end quote. 

As you may have inferred by the context under which each law was passed, the idea and intent behind these acts were to provide some mechanism to assist in a local crisis when local authorities were unable to do so and were passed in reaction to events and pressures faced by a still nascent federal government. 

Currently, the Insurrection Act is codified in Sections 251 through 255 in title 10 of the United States code. Under Section 251, the President may deploy troops at the request of the state legislature - or the Governor when the legislature is not in session - to help suppress a local insurrection. Meaning, the president must be invited to aid local authorities who, in their estimation, are otherwise unable to handle the situation. Sections 252 and 253 both allow for the deployment of troops without first obtaining state authorization, but section 252 limits any deployment to aid in enforcing the laws or suppressing a rebellion when it is quote “impracticable” to enforce federal law in the state through normal legal channels. Section 253 is divided into two parts and allows the president to use the military in a state to suppress quote “any insurrection, domestic violence, unlawful combination or conspiracy” end quote that prevents the enforcement or execution of the law if said insurrection quote “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” end quote. To put it another way, the President has the authority to deploy the military absent a state request and in direct opposition to the state only when individuals within said state are being deprived of their constitutional rights and the President, in his estimation, believes the state is either unable or unwilling to protect that right. The second part of Section 253 is much broader and simply states that the President can invoke the Insurrection Act against a state’s wishes when there is a situation that quote: “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws,” end quote. Section 254 requires that before the President deploys a military response, he must first issue a proclamation ordering the insurgents to return to their homes - basically giving them a warning to disperse. Finally, Section 255 added Guam and the Virgin Islands to the definition of what constitutes a U.S. state.

Now that we’ve covered the context surrounding the Militia and Insurrection Acts, let’s dive into when and how they’ve been used by various Presidents. A total of 17 presidents have used the Militia and Insurrection acts to put down rebellions or to enforce the law when states were either unable or unwilling to do so. Some presidents invoked the Insurrection Act to end labor disputes - and usually to back up the side of business - such as Grover Cleveland in 1894 to break up the Pullman Strike - while others have used the law to enforce the rights of Americans when the state refused to do so - including in 1957 when Dwight Eisenhower deployed troops to enforce school segregation in the aftermath of the Supreme Court decision in 1954. I could spend a whole episode reviewing each of these instances, but for the sake of time, I will limit myself to reviewing just a few. 

The Whiskey Rebellion was the first invocation of the newly established powers when George Washington issued a proclamation in 1792 denouncing those precluding the government from collecting taxes that were legally established by Congress. I covered the Whiskey Rebellion in the early years of the show, but to provide the briefest of summaries: the Whiskey Rebellion originated in response to another tax - this time on distilled spirits - which residents in rural Pennsylvania disagreed with and saw as an abuse of federal authority. Those who disagreed with the law took steps to prevent the collection of taxes - either through violence or intimidation. 

Washington’s initial proclamation was quite mild and was essentially a request that those responsible cease their unlawful actions. However, Washington - who was still trying to navigate the role and power of the presidency - stopped short of calling up the state militia in response - until 1794 when the situation grew increasingly violent and Washington felt as though he had no other choice. Luckily, the arrival of the troops proved to be a sufficient deterrent and the rebellion was effectively squashed without any armed engagement. If you want to learn more about the specifics of the Whiskey Rebellion, I recommend checking out the episode I did a few years back - I will be sure to include a link to the episode in the show notes of this episode. 

Washington’s use of the law was followed by his successor, second president John Adams who had to invoke the law in 1799 to suppress a domestic uprising against those refusing to comply with the collection of taxes - this time property taxes - in Pennsylvania. Known today as FREEZE Rebellion, troops under the direction of President Adams, marched into rebellious counties to arrest individuals who failed to abide by the proclamation. Adams later pardoned the leader of the uprising, John FREEZE and extended amnesty to others who participated. 

Andrew Jackson invoked the Insurrection Act several times, including over a border issue with Mexico  and during Nat Turner’s rebellion. Jackson, however, failed to follow the procedures outlined in the Insurrection Act during Turner’s rebellion and ordered federal troops to aid in quashing the rebellion without first issuing a proclamation. To date, President Ulysses S. Grant holds the record as the president who invoked the Insurrection Act the most. During Reconstruction when Grant and Radical Republicans in Congress were trying to extend the franchise to Black men and ensure their access to the vote was protected, scores of white supremacist groups and militias cropped up to do everything they could think of to claw back the minor gains made by the passage of the 15th Amendment. These groups engaged in a series of tactics - everything from home invasions to rejecting the results of elections. In fact in 1871, Congress amended the Insurrection Act specifically to give the president more power to combat members of the Ku Klux Klan. And the longtime listeners of the show - you may remember the episode I did on the Colfax Massacre when refusal to accept the results of the 1872 election led to the occupation of a local courthouse. This incident was yet another instance where President Grant used the power of the Insurrection Act to enforce federal law and stop the violence.  

In the twentieth century, the Insurrection Act was used by Presidents Eisenhower, Kennedy, and Johnson to enforce federal laws aimed at de-segregating schools including in 1963 when Governor George Wallace infamously tried to physically block African American Students Vivian Malone and James Hood from enrolling and entering the University of Alabama. 

The last time the Insurrection Act was invoked was in 1992 when California Governor Pete Wilson asked President George Bush for help in squashing the riots that broke out in the aftermath of the acquittal of the white officers involved in the beatings of Rodney King. You would have to go back to 1965 for the last time the act was invoked against a state’s explicit wishes, which again was done in the advancement of Civil Rights under President Johnson who issued the deployment of troops to protect activists who were marching from Selma to Montgomery Alabama. 

Despite the fact that Presidents have largely acted appropriately and lawfully when invoking the Insurrection Act, several advocacy groups have called for reform. Critics point to the vague language and cite concerns about the ability for the law to be used with mal intent. For example, the law provides no definition for what an insurrection or rebellion is, which leaves too much up for interpretation. Adding to their concerns is the 1827 Supreme Court case Martin v Mott where the court found that the authority to determine whether a situation requires the deployment of state militias lies wholly and exclusively with the president,  leaving it to his sole discretion to judge whether Americans are acting in alignment with their first Amendment rights or whether they’re engaged in an insurrection. 

Yet another Supreme Court case, 1932’s Sterling v. Constantin provided that courts were allowed to review the legality of military member actions once they were deployed as a result of the invocation of the Insurrection Act. Meaning that members are not immune from prosecution should they violate the law. 

Those demanding reform ask that strong checks are put in place to prevent a president from misusing this authority and update the language to reflect a stricter application. Calls for updates to the language pre-date the existing administration and go as far back as the early 2000s. Critics argue that any suspensions of the Posse Comitatus Act, which prevents the military from domestic law enforcement activities, should be limited, temporary, and subject to strict additional oversight. 

Given the current state of United States politics, it is highly unlikely that any bipartisan legislation will make it out of Congress, let alone an amendment to such an archaic law intended for use in limited situations, but crazier things have happened. 

I hope you all found this to be an informative deep dive into our civic history and be sure to check back over the next couple of weeks as I highlight other laws and court cases that make the news. And as usual, while I have some ideas of things to cover in this side project, the inbox is open should you have any other laws or court cases you think would be a good civics lesson. Head over to the website at www dot civics and coffee dot com for more information about how to contact me.

Thanks, peeps. I’ll see you next week.

OUTRO