The Insurrection Act and Use of the US Military on US Soil
On June 3, against the backdrop of the ongoing nationwide protests following the death of George Floyd at the hands of Minneapolis police officers, White House Press Secretary Kayleigh McEnany told reporters that President Donald Trump “has sole authority to invoke the Insurrection Act” and “if needed, he will use it.”  While, as of June 5, the President has not invoked the Act, he has stated that “If a city or a 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.”
The threats have sent a bevy of Democratic lawmakers and officials scurrying to try to head off the possibility of the carrying out of the threat. New York Attorney General Letitia James said that the state would go to court to “protect our constitutional rights” and US Senator from Connecticut Richard Blumenthal proposed federal legislation to reform the Insurrection Act to restrict the president's authority.
The 1878 Posse Comitatus Act (along with other laws and regulations) generally bar the use of US military for domestic law enforcement. In fact, the Act makes the use of the military within the United States as a “posse comitatus” (meaning as law enforcement agent) a felony punishable by up to two years in prison.
The Insurrection Act, which dates all the way back to 1807 and which was expanded in 2005 in the aftermath of Hurricane Katrina, provides three relevant exceptions.
First, under Section 251 of Title 10 of the United States Code, the President may use the military to assist where there is an “insurrection in any state against its government,” but only upon the “request of its legislature or of its governor if the legislature cannot be convened.”
Second, Section 252 allows military force to be used when “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.” This is the section that has been applied primarily to situations of rampant criminality and widespread rioting.
Third, under Section 253, President may do the same to “suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy” where such “so hinders the execution of the law” that the people are “deprived of a right, privilege, immunity, or protection named in the Constitution or law. This section is typically used to protect civil rights activists and to protect people from infringements of rights by state governments.
Note that if the Insurrection Act is invoked, it must be done clearly, openly and by public proclamation. The President must also precede use of the military by a “proclamation to disburse.”
Through its existence, the Insurrection Act has been used only about 20 times and not since 1992. Perhaps the most well-known example of its invocation occurred when President Dwight D. Eisenhower federalized the Arkansas National Guard and ordered it to force school integration in the South following the landmark US Supreme Court decision of Brown v. Board of Education that ruled segregation of public schools unconstitutional.
Most recently, the Act was used by President George H.W. Bush in May of 1992 to deploy military resources to Los Angeles to help control the riots following the acquittal of police officers in the beating of motorist Rodney King. In that case, thousands of US Army and Marine soldiers were sent to restore order and patrol in Los Angeles.
The decision to invoke the Insurrection Act is made by the President alone and the Act does not confer a private cause of action, meaning that individual citizens are unlikely to succeed in securing injunction preventing its use. Conversely, courts have also ruled that private citizens cannot successfully force the President to invoke the Act even where arguably necessary to protect the citizens. The federal court for the District of Delaware noted that the President “may not be ordered to perform particular executive or legislative acts at the behest of the Judiciary.”
So, the mechanisms upon which to oppose the President’s invocation would either be for states to decline to request army assistance, in the case of the Section 251 or judicial challenge by the states in the case of 252.
Many states seem unlikely to request federal assistance. New York’s Governor Andrew Cuomo, despite sounding the alarm at lawlessness in New York on June 2, rejected the suggestion of military assistance.
So, the key question becomes whether the demonstrations constitute “unlawful obstructions, combinations, or assemblages, or rebellion” that “make it impracticable to enforce the law” through the normal systems.
The other key question is whether courts will even be willing to get involved. Courts might consider the question a “political question,” which means one best left to the other branches of government. While not a perfect analogy, this is how courts have typically handled lawsuits brought against the President under the War Powers Resolution, under which Congress allocated itself authority to limit Presidential discretion in foreign military conflicts.
So, federal legislation limiting the Insurrection Act like that proposed by Senator Blumenthal may be the only effective check on this power of the President. Of course, for this particular situation, the die will likely be cast long before Congress can act, consigning any such legislation to effectiveness for future situations. For now, it seems that only political considerations are likely to prevent the use of military force to quell the present demonstrations.