Insurrection Act FAQ
Insurrection Act of 1807: What it is and What to Expect on April 20th
Have you heard rumors of martial law being invoked on April 20th, but you’re not sure why people are saying that? We explain below what people are talking about and what it means for you and the nation at large.
Why do people keep bringing up the Insurrection Act and martial law lately?
The same day Donald Trump was inaugurated, he issued Proclamation # 10886 (“Declaring a National Emergency at the Southern Border of the United States”), claiming, without evidence, that “[f]oreign criminal gangs and cartels have begun seizing control of parts of cities” and saying that “[h]undreds of thousands of Americans have tragically died from drug overdoses because of the illicit narcotics that have flowed across the southern border.” Trump declared a national emergency and required the Secretary of Defense and the Secretary of Homeland Security to submit a joint report within 90 days of the proclamation indicating whether they recommend invoking the Insurrection Act of 1807.
Since that 90-day period expires on April 20th, there has been a lot of discussion about what the Secretaries may recommend and what happens next if they do recommend invoking the Insurrection Act. Some are concerned this will lead to Trump invoking martial law.
What is the Insurrection Act?
The Insurrection Act of 1807 is a law granting the President of the United States, in cases of insurrection or other “obstruction of laws,” the power “to call forth the militia for the purpose of suppressing such insurrection.” Said another way, the Insurrection Act allows the President to send the military into a state to suppress an insurrection against the state’s government or the federal government.
What are some examples of how the Insurrection Act has been used in the past?
Andrew Jackson used the Insurrection Act to quell a slave rebellion and a labor dispute. Ulysses S. Grant used the Act to suppress white supremacist insurgencies after the Civil War. John F. Kennedy used the Insurrection Act to combat riots that broke out when schools were required to desegregate. George H.W. Bush used the Insurrection Act to suppress civil unrest after LAPD officers involved in the beating of Rodney King were acquitted of all charges.
Trump, in his 2016 term, toyed with invoking the Insurrection Act several times: for example, to suppress Black Lives Matter protests nationwide, and to “put down [anti-Trump protests] very quickly” if he won the 2020 election. When he lost the 2020 election, Trump reportedly discussed using the Insurrection Act to change the results of the 2020 election. Many on the right denounced the use of the Act for these purposes, and Trump ultimately backed off the use of the Insurrection Act.
How does a President invoke powers under the Insurrection Act?
10 USC § 254 (“Proclamation to disperse”) states that the President must first issue a proclamation ordering insurgents to remain in their homes within a limited time to then use the militia or armed forces if they refuse.
Other than that proclamation requirement, the Act is vague about what is required to invoke the Act. The Insurrection Act, for example, doesn’t include requirements that the President provide evidence of any claims used to justify invoking the Act, any time limits on using military action, or any requirement for Congressional approval.
Once a President invokes powers under the Act, what can the President actually do?
The President can order the military to enter a state under one of three provisions:
10 USC § 251 (“Federal aid for State governments”) allows the President, “upon the request of [a State’s] legislature it or of its governor,” to bring federal troops into the state to suppress an insurrection.
10 USC § 252 (“Use of militia and armed forces to enforce Federal authority”) allows the President to send federal troops into a state when the President decides “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impractical to enforce the laws of the United States.” This section does not require state consent.
10 USC § 253 (“Interference with State and Federal law”) allows the President to send federal troops into a state when the President finds that an “insurrection, domestic violence, unlawful combination, or conspiracy” is present in the state that (i) deprives some portion of the state’s people of their Constitutional or statutory rights; or (ii) opposes or obstructs the government from enforcing federal laws. This section does not require state consent.
What do insurrection laws have to do with immigration?
Trump has declared a national emergency based on the presence of undocumented migrants across the country. Trump has also frequently framed anyone who refuses to cooperate with ICE as obstructing justice and prioritizing immigrants over American citizens. As one example, the White House recently claimed that Boston’s sanctuary city policy “puts violent criminal illegal aliens first” and “def[ies] the will of the American people and obstruct[s] the Trump administration’s efforts to remove these monsters from our streets.” Unsurprisingly, a lot of the language used in the White House statement looks very similar to language in the Insurrection Act; Trump is seemingly trying to find reasons to send troops into states such as Massachusetts without their legislatures’ consent.
So if he does invoke the Insurrection Act, is that martial law?
No. When people talk about “martial law,” they’re generally talking about a situation where the military replaces some or all branches of government; for example, the military takes over Congress and starts deciding what our laws will be. In contrast, the Insurrection Act doesn’t authorize a President to replace Congress or the Supreme Court with the military, even temporarily—it’s only designed to allow the President to use the military like a police force when people are rebelling against the government or otherwise preventing the government from operating. Trump would need to separately declare martial law; at least in theory and according to precedent, any attempts to do so would have to be approved both by Congress and the Supreme Court.
What is the likelihood that Trump successfully declares martial law?
That’s a good question that’s unfortunately difficult to answer. On the one hand, Trump’s and Vance’s attacks against U.S. courts and the Republican Congressional majority’s unwillingness to defy Trump on most issues raise concerns about whether either branch of government would be willing or able to step in to check the President if he declares martial law. On the other hand, the Supreme Court recently made clear that it will not accept deportation without due process, Congressional Democrats have had a fire lit under them after a record-breaking protest by Senator Cory Booker, four Republican Senators joined Democrats earlier this month to reject Trump’s attempt to declare a national emergency to justify tariffs on Canadian imports, and several cracks are starting to show in the Republican House majority. Trump is also losing approval by the day—most Americans already disapprove of Trump’s efforts to deport immigrants without due process.
Everyone’s efforts so far to protest against the actions of the Trump Administration have likely played a huge part in causing this shift, and if we keep it up, hopefully any attempts by Trump to overstay his welcome will be strongly checked.
Should liberals be concerned?
Many, including the Brennan Center, warn the Insurrection Act is “vague and archaic,” lacking clear and unambiguous guidance on when the Insurrection Act can be invoked, what a President needs to establish (if anything), to invoke it, and what its limits are. This gives a President vast amounts of discretion to use the military for reasons that aren’t strictly a matter of national security.
There’s also the concern that, once Trump is able to finally get troops into various states to “combat immigration,” he will actually start using the troops to suppress lawful protest. That would make it more challenging to speak out against the current administration and to mobilize activists, and it would set a scary precedent against free speech.
Should conservatives be concerned?
Invoking the Insurrection Act for reasons other than actual insurrections or foreign threats sets a dangerous precedent for presidents to try and usurp states’ rights. It’d mean any President can claim anything is a national security concern, which then would allow the President to restrict the actions of any state and the people inside it, for as long as the President likes. Even those who agree with Trump using the Insurrection Act for immigration should be concerned here because of the potential for other Presidents after him to do the same using other issues.
Conservatives should also be concerned about the potential for using the Insurrection Act to quell nonviolent and lawful protests. Again, even for those who think Trump should restrict current protests against his presidency, this sets a dangerous precedent that can go both ways—conservatives could be giving up their own right to protest against presidents and policies they don’t agree with in the future if they support Trump doing so now.
If I am concerned, what should I do?
First things first: don’t panic. This is all scary stuff, but it’s nothing that people haven’t overcome before.
If you want to try and do something sooner rather than later, start by sharing this article with your friends and family who are trying to, or would benefit from, getting up to speed on the Insurrection Act and the April 20th deadline, so that they can be informed, too.
Be sure to contact your federal representatives to let them know that you’re concerned and that you strongly disagree with any attempts to use the Insurrection Act to deal with immigration, especially at the expense of states’ rights and freedom of speech. Attend a town hall if you can.
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