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This essay first appeared in the Dec. 18, 2023 Epoch Times.
Former President Donald Trump has said that, if he is re-elected, he may use the militia or armed forces to suppress violence and looting. His legal basis consists of five sections of federal law collectively called the “Insurrection Act.”
President Trump apparently was recalling the Black Lives Matter/Antifa riots of 2020—riots occurring mostly in cities and states controlled by “progressive” officeholders who failed to take effective action against them.
Left-of-center outlets have called Trump’s remarks dangerous and dictatorial. The truth, however, is complicated.
Here is a more objective view of what a President can, and cannot, do under the Insurrection Act.
The Insurrection Act’s Legal Role
The United States has never had a general national police force. Under our Constitution, most law enforcement is a state, not a federal responsibility. Federal police generally have been limited to narrow functions, such as operating on federal land and protecting federal buildings.
This may be one reason the U.S. has never had an absolute dictator. In Europe, ambitious politicians (such as Adoph Hitler) have used national police forces as tools for imposing their will. Indeed, this history of national police forces is one reason expansion of the FBI’s functions has been so alarming.
The Insurrection Act is an exception to the general rule that the U.S. Government doesn’t do local policing. The significance of that is explained below.
Three of the Law’s Five Sections
The Insurrection Act consists of Sections 251 through 255 of Title 10 of the U.S. Code. We can dispose of three of those sections quickly:
Section 251 allows the President to use the militia and armed forces to assist a state in suppressing an insurrection—but only if the state requests help. Section 251 carries out part of the Constitution’s Guarantee Clause (Article IV, Section 4). The Guarantee Clause obligates and empowers the U.S. Government to protect a state against domestic violence—but, again, only when the state requests help.
Trump probably could not use this section to suppress violence in Democrat states because officials in those states are unlikely to request help. During the 2020 riots in Portland, Oregon, for example, Trump offered federal assistance, but the state governor and city mayor told him to stay out.
Section 254 says that before the President uses the militia or the armed forces under the Insurrection Act, “he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time.” This merely gives the mob a chance to break up before federal troops move in.
Section 255 clarifies that the Insurrection Act applies to Guam and the Virgin Islands as if they were states.
If Trump wishes to proceed against the wishes of Democrat state officials, he will have to use Section 252 or Section 253. Let’s examine them in inverse order.
Section 253 authorizes the President to use the militia or U.S. Armed Forces in two situations. One arises when state authorities block enforcement of federal law. It is a restatement of part of Section 252, which we’ll examine below. The other situation is more interesting. It allows the President to call out the military when domestic violence
“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.”
To simplify: For the President to act under this section, there has to be (1) violence (2) that prevents people from exercising named constitutional rights, and (3) state and local authorities don’t protect those rights.
This section might apply if “woke” state university officials look the other way while mobs prevent conservative students from exercising their constitutional right to free speech. It also might apply if local authorities refuse to stop Hamas-inspired mobs from destroying Jewish synagogues—thereby interfering with freedom of religion.
Most of the 2020 violence President Trump was thinking of was not the kind that violated rights “named in the Constitution.” The Constitution requires state governments to comply with “due process of law,” but it doesn’t list specific rights against hooligans robbing you or smashing your windows.
Section 252 reads as follows:
“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.”
The term “laws of the United States” means federal, not state, laws. Generally speaking, garden-variety riots snd looting are violations of state rather than federal law. And although federal criminal law has expanded dramatically over the last few decades, serious constitutional questions remain about how far the federal government can go in regulating the kind of violence that afflicts Democrat-run cities.
To employ Section 252, therefore, President Trump would have to point to specific violations of federal statutes. One example might be an attack on a U.S. courthouse. Another might be mob attempts to intimidate Supreme Court justices in violation of federal law, such as occurred in 2022.
Also, Section 252 applies only when it becomes “impracticable” to enforce the law “by the ordinary course of judicial proceedings.” Presumably this means that the courts are not open and operating. Mere disagreement about how the law is being enforced probably is not enough.
Some counter that the President has unchecked power to interpret Section 252 because of the phrase “Whenever the President considers . . . .” They point to a very old Supreme Court case—Martin v. Mott (1827). That case stated that the President is “the sole and exclusive judge” of when to use his powers under the Insurrection Act.
But Martin v. Mott did not construe Section 252 as it exists today. It reviewed the President’s power to call out the militia in case of invasion, not domestic violence. Responding to invasion does not present the same risks of dictatorship as domestic policing does.
There are further reasons the courts are unlikely to allow the president unlimited discretion:
- The courts almost never rule that a federal official can do whatever he wants, whatever the consequences. Even though officials have a lot of discretion, that discretion almost always has limits.
- Martin v. Mott was based on the premise that the President would always have “high qualities . . . public virtue, and honest devotion to the public interests.” History since 1827 has thoroughly disproved that premise!
- The Insurrection Act is an exception to the general rule that the feds don’t do domestic policing. Judges usually interpret general rules widely, but exceptions narrowly.
In sum: The Insurrection Act may be a viable alternative for preventing “woke” officials from cooperating with mobs in suppressing specific constitutional rights—such as freedom of speech, freedom of religion, trial by jury, and the right to keep and bear arms.
It probably is not a viable tool for responding to garden-variety rioting and looting. Nor, in view of the sordid history of national policing, should it be.