What powers does the President have under the Insurrection Act?

Earlier this week, President Trump warned that he would send the U.S. military to any state that refused to take action against the riots. He would have the power to do this under the Insurrection Act of 1807.

Mayor Durkan denounces Trump’s threat to send troops to Seattle

While individual states have the primary responsibility and authority to provide order and protect lives and property, the federal government is responsible for protecting the country against invasion and insurrection, former Washington state Attorney General Rob McKenna explained on Seattle’s Morning News.

“I knew that the feds could send in troops when the governors or legislatures requested,” he said. “But I had not heard this argument before that the president has statutory authority to send in federal troops without being requested. That would be a first in our country’s history.”

The Insurrection Act was signed into law by Thomas Jefferson when he was President.

“The idea is that states want to be able to call the federal government in to help them if they’re facing an insurrection,” McKenna explained. “So if there’s a revolt against the state government, they want to be able to call the feds to come in. This made a lot of sense, especially early in our country’s history, when it really was a republic — the states were more independent, there wasn’t a strong central government as we have now.”

In recent history, when the Insurrection Act has been cited as a basis for sending in federal troops, it’s been after a state requested help.

“For example, the Insurrection Act was used to send armed forces into quell widespread looting in the Virgin Islands in 1989 following Hurricane Hugo,” McKenna said. “It was used during the 1992 Los Angeles riots when you also had widespread looting and rioting, … in those cases, the act was cited because if you don’t cite to a statutory exemption, another law called the Posse Comitatus Act applies.”

The Posse Comitatus Act, McKenna explained, says there can be no law enforcement by federal troops. The Insurrection Act is a statutory exemption to the Posse Comitatus Act.

“But there is a provision, Section 253, which permits the president to use the armed forces to suppress, quote ‘any insurrection, domestic violence, unlawful combination or conspiracy,'” McKenna said. “If law enforcement is hindered within a state, if local law enforcement is unable to protect individuals or, and this is key, if the unlawful action obstructs the execution of the laws of the United States or impedes the course of justice under those laws, the Insurrection Act does allow the president to go on without being asked.”

This, McKenna said, has never happened, but the question now is if the current situation truly meets the criteria to warrant action from the federal government.

“The president gets to make the call under that one section I just quoted to you, and we’re assuming a scenario here where he’s not asked to send in federal troops,” McKenna said. “… And he’s got a pretty high standard he has to meet here. I mean, are we experiencing insurrection? Probably. Arguably experiencing domestic violence in the sense the statute means it, right? Violence domestically. Maybe conspiracy. But is local law enforcement unable to protect individuals? That would be a harder argument to make.”

McKenna suspects that if federal troops are sent to a state that doesn’t want them, the state governor would go to the courts to say that it doesn’t meet the requirements of the act for unilateral federal action.

“Objectively, it doesn’t appear that we’re in the kind of situation that President Jefferson and Congress in 1807 envisioned when they wrote this act,” he added. “We’re not seeing rebellion. We’re seeing riots, we’re seeing looting. We’ve seen those things before and they can be controlled by the states. And sometimes the states need help, but the states will ask for the help when they need it.”

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