The Insurrection Act

source: The Conversation by Jack L. Rozdilsky
Associate Professor of Disaster and Emergency Management, York University, Canada
In the wake of the killing of George Floyd, American cities are coping with strife and civil unrest comparable to 1968.
On June, 1st President Trump specifically named the Insurrection Act of 1807 as a possible remedy to the current crisis. Surprisingly, due to that obscure act, Trump may indeed have the power to send federal troops into states without a request from the governor, even as the Pentagon tries to distance itself from the threat.
In times of disaster, active-duty military troops can indeed be ordered to perform actions to protect life, property and maintain order.
In terms of U.S. federal legislation enabling the government to take action to respond to disaster, the Stafford Act authorizes the use of the military for disaster relief. In such cases, a state’s governor must make a request for the military to provide very specific support roles for disaster relief efforts.
However, in the American constitutional republic, there are direct limits on the support roles that the military can play in times of crisis.
Restrictions on the participation of the military in domestic law enforcement are interpreted through the Posse Comitatus Act. It’s been in force since 1878, when it was enacted as part of a backlash against the imposition of federal martial law in the former Confederate States during the post-Civil War Reconstruction era.
There are four statutory exceptions when the military can act in a domestic law enforcement capacity, in direct contradiction to the Posse Comitatus Act.
Three of the exceptions are based on enabling responses to contemporary threats to the United States, when only the federal government would be capable of mustering the resources necessary to respond to serious national security crises of grave concern.
Those situations pertain to fighting drug and transnational organized crime activities, assistance in the case of crimes involving nuclear material and emergency situations involving the use of weapons of mass destruction.
The fourth exception is the Insurrection Act, which has had very little alteration since it was enacted on March 3, 1807.
The act permits the federal deployment of military force into the states to suppress insurrections and enforce federal law in three circumstances. These circumstances are clearly defined by the legislation.
Federal aid to state governments is the first circumstance that allows for federal military intervention to suppress an insurrection in a state, upon the request of that state’s governor or legislature.
During the 1992 Los Angeles riots, for example, President George H.W. Bush deployed federal troops at the request of the California governor to quell civil uprisings in south-central L.A.
Another section of the act, entitled “Use of Militia and Armed Forces to Enforce Federal Authority” permits the president, on his own initiative, to suppress rebellion or enforce federal laws. If the president believes that …
“Unlawful obstructions, combinations, assemblages, or rebellion against the authority of the United States make it impracticable to enforce the laws of the United States in any States by the ordinary course of judicial proceedings …”
… then armed forces of the federal government can be deployed to the states.
The origins for the domestic use of troops are found in the Calling Forth Act of 1792, which allowed for President George Washington to send federal to troops to suppress the Whiskey Rebellion despite disagreements with the governor of Pennsylvania.
During the American Revolution, individual states incurred significant debt. In 1790 Treasury Secretary Alexander Hamilton pushed for the federal government to take over that debt. He also suggested an excise tax on whiskey to prevent further financial difficulty.
President George Washington was opposed to Hamilton’s suggestion of a whiskey tax. In 1791 Washington journeyed through Virginia and Pennsylvania to speak with citizens about their views.
Local government officials however, met the idea of a whiskey tax with enthusiasm, and Washington took this assurance back to Congress, which passed the bill.
But protests against the new tax began immediately, arguing that the tax was unfair to small producers. Under the new law, large producers paid the tax annually at a rate of six cents per gallon, and the more they produced, the further the tax breaks. Small producers, however, were stuck with paying nine cents per gallon in taxes. Farmers took further issue because only cash would be accepted for tax payment.
The law was immediately a failure, since refusals to pay the taxes were as common as intimidation against officials hired to collect them.
Perhaps inevitably, violence broke out. On September 11, 1791, excise officer Robert Johnson was riding through his collection route in western Pennsylvania when he was surrounded by 11 men dressed as women. The mob stripped him naked and then tarred and feathered him before stealing his horse and abandoning him in the forest.
Johnson recognized two men in the mob. He made a complaint and warrants were issued for their arrest. A cattle drover named John Connor was sent with the warrants, and he suffered the same fate as Johnson. He was tied to a tree in the woods for five hours before being found. In response, Johnson resigned his post, fearing further violence.

In the summer of 1794, federal marshal David Lenox began the process of serving writs to 60 distillers in western Pennsylvania who had not paid the tax. On July 14, Lenox accepted the services of tax collector and wealthy landowner John Neville as guide through Allegheny County.
On July 17, 1794, as many as 700 men marched to drums and gathered at Neville’s home. They demanded his surrender, but Major James Kirkpatrick, one of 10 soldiers who had come to the property to help defend it, answered that Neville was not there. In fact, Kirkpatrick had helped Neville escape the house and hide in a ravine.
The mob demanded that the soldiers surrender. When that request was refused, they set fire to a barn and slave dwellings. The Neville women were allowed to flee to safety, after which the mob opened fire on the house. Following an hour of gunfighting, the mob’s leader, James McFarlane, was killed. In a rage, the mob set fire to other buildings and the soldiers soon surrendered as the Bower Hill estate burned to the ground.
Less than a week later, the mob met with local dignitaries who warned that Washington would send a militia to strike them down and they had to strike first. Wealthy landowner David Bradford, along with several other men, attacked a mail carrier and discovered three letters from Pittsburgh expressing disapproval of the attack on Neville’s property.
Bradford used these letters as an excuse to encourage an attack on Pittsburgh, inciting 7,000 men to show up at Braddock’s Field, east of the city.
The city of Pittsburgh, fearing violence, sent a delegation to announce that the three letter writers had been expelled from the city and to offer a gift of several barrels of whiskey.
As the day ended, the crowd had drunk deeply from the barrels and weren’t inspired to descend on Pittsburgh with any fury, instead gaining permission to march through Pittsburgh peacefully.

With signs that the rebels were hoping to reignite the conflict and believing it was linked to unrest in other parts of the country, Hamilton wanted to send troops to Pennsylvania, but Washington opted for a peace envoy instead.
The peace envoy failed. Washington met with his cabinet officials and presented evidence of the violence to Supreme Court Justice James Wilson, who ruled a military response was justified under the auspices of the Militia Acts of 1792. Washington assumed emergency power to assemble more than 12,000 men from the surrounding states and eastern Pennsylvania as a federal militia.
Washington met first with the rebels, who assured him the militia was not needed and that order had been restored. Washington opted to retain the military option until proof of submission was apparent.
The large and well-armed militia marched into western Pennsylvania and was met with angry citizens but little violence. When a rebel army didn’t appear, the militia rounded up suspected rebels instead.
However, the rebellion’s instigators had already fled, and the militia’s prisoners weren’t involved in the rebellion. They were marched to Philadelphia to stand trial regardless. Only two men were found guilty of treason, and both were pardoned by Washington.
The federal response to the Whiskey Rebellion was widely believed to be a critical test of federal authority, one that Washington’s fledgling government met with success.
The Calling Forth Act that was used in The Whiskey Rebellion, was extended into the 1807 Insurrection Act as the militia acts of the 1790s that first delegated sweeping emergency powers to the president expired.
A section of the Insurrection Act entitled “Interference with States and Federal Law” allows for the president to take any measures necessary to suppress, in a state, any insurrection, domestic violence, unlawful combination or conspiracy.
Need another example? Here you go.
By 1932, the third year of the Great Depression, the stage was set for a dramatic confrontation.
In 1924, when the economy had been strong, Congress had passed the World War Adjusted Compensation Act, awarding bonuses to surviving veterans of World War I. There was a catch, however: The “bonus” certificates, which would have been worth approximately $500 plus compounded interest, were not redeemable until 1945.
One former sergeant and combat veteran from World War I, Walter Waters of Portland, Oregon, decided that wasn’t good enough. Like many, if not most of the surviving veterans, by 1932 Waters was unemployed. He wanted his money now.
At a Portland veterans meeting in March, Waters raised the idea of descending on Washington en masse to pressure Congress to paying the bonus immediately.
Thus the so-called Bonus Expeditionary Force—also known as the Bonus Army—was formed. In the late spring of 1932, the ragtag “army” of 17,000 veterans and their families, led by Waters, descended on Washington by foot, truck and train to demand their pay.
Most of the Army settled in Anacostia Flats, a muddy area across the Anacostia River south of the 11th Street Bridge. There they erected a sprawling network of camps—which they of course called Hoovervilles—to serve as their base to lobby Congress and make their presence known around the capital.
The sprawling cluster of camps, which included sanitation facilities and even a library, were tightly supervised by “Commander Waters,” as he was now called, and his adjutants.
Veterans were required to register and prove that they had been honorably discharged. There were a lot of American flags at Bonus City, the main Anacostia camp. Basically, the vets just wanted their money.
The Army was partly successful. On June 15, after an impassioned debate which caused one representative to drop dead of a heart attack on the floor of Congress, the House passed the $2.4 billion Wright Patman bill by which the Bonus Marchers and the other surviving doughboys would immediately be given $1,000.
The celebration was premature. Two days later the Senate rejected the bill by a wide margin.
President Hoover now convinced himself, with the aid of Douglas MacArthur, his Caesar-like Army chief of staff that the Bonus Army had been infiltrated by communists and was planning to stage a revolt.
This was not true. In fact, Waters had made a point of ferreting out any Reds or would-be Reds from his “troops.” It didn’t matter. As far as Hoover and MacArthur were concerned, the Bonus Marchers were a horde of criminals and communist subversives.
Finally, on the afternoon of Thursday, July 28, 1932, under prodding from the White House, the commissioners of the District of Columbia ordered the D.C. police to clear the area where the Bonus Marchers were squatting.
The police moved in. The veterans, who were armed with nothing more than bricks, resisted. Bricks were thrown. Shots rangs out. When the smoke cleared one veteran was dead, another was mortally wounded and a D.C. policeman also lay near death.
That is when the D.C. commissioners asked the White House for federal troops.
Hoover, now fed up with the rabble outside his house, was happy to oblige the District commissioners’ request for reinforcements. The president passed the request to his secretary of War, Patrick Hurley, who passed the request to four-star General MacArthur, who also was happy to oblige.
In Hoover’s statement justifying sending in federal troops, which was carried on the front page of the New York Times and other major American newspapers, he asserted: “An examination of a large number of names discloses the fact that a considerable part of those remaining are not veterans; many are Communists and persons with criminal records.”
“Damned lie,” Waters raged. “Every man is a veteran. We examined the papers of everyone.” It didn’t matter: The then-largely conservative American press backed Hoover.
To say that MacArthur was eager to do battle with the Bonus Army is to understate the case. For weeks his men at nearby Fort Myers had undergone anti-riot training for just such a confrontation.
Still, there was neither need nor call for MacArthur himself to actually be on the scene that afternoon, as his aide, Major Dwight Eisenhower, reportedly told him. “I told that son of a bitch that he shouldn’t go there,” Eisenhower later recounted. MacArthur’s subordinate, General Perry Miles, was technically in charge.
But there MacArthur wasas the bayonet-wielding men of the 12th Infantry Regiment, and the mounted troops of the 3rd Cavalry Regiment, supported by six M197 light tanks, marched up Pennsylvania Avenue while thousands of civil service employees left work to line the street and watch.
The New York Times reported what happened next: “Amidst scenes reminiscent of the mopping up of a town in the World War, Federal troops drove the army of bonus marchers from the shanty town near Pennsylvania Avenue in which the veterans had been entrenched for months.
Ordered to the scene by President Hoover detachments of infantry, cavalry, machine gun and tank crews laid down an effective tear-gas barrage which disorganized the bonus-seekers, and then set fire to the shacks and tents left behind.”
As newsreel cameras rolled, MacArtur’s men proceeded to forcibly evict the remaining veterans and their families and torch their tents. Fifty-five veterans were injured and 135 arrested in the confrontation that day.
Let me give you one final example.The 1957 deployment of federal troops by President Dwight Eisenhower to enforce school desegregation orders in Little Rock, Arkansas.
The Little Rock Nine were a group of nine black students who enrolled at formerly all-white Central High School in Little Rock, Arkansas, in September 1957.
Their attendance at the school was a test of Brown v. Board of Education, a landmark 1954 Supreme Court ruling that declared segregation in public schools unconstitutional.
On September 4, 1957, the first day of classes at Central High, Governor Orval Faubus called in the Arkansas National Guard to block the black students’ entry into the high school.
Later that month, President Eisenhower sent in 1,200 members of the U.S. Army’s 101st Airborne Division from Fort Campbell, Kentucky, and placed them in charge of the 10,000 National Guardsmen on duty. Escorted by the troops, the Little Rock Nine attended their first full day of classes on September 25.
While Trump has stopped short of invoking the 1807 act to use the military to enforce laws domestically, he’s kept the option open and as you can see, he would not be the first president to use federal forces.
Section 334 of the Insurrection Act states:
“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.”