Whether or Not Trump Invokes It, the Insurrection Act Is Antiquated and Dangerously Broad
Last Thursday, a federal judge in San Francisco issued a temporary restraining order against President Donald Trump’s unilateral deployment of the California National Guard to facilitate immigration raids in the Los Angeles area, saying that takeover was illegal and unconstitutional. Although U.S. District Judge Charles Breyer’s order was stayed the same day by the U.S. Court of Appeals for the 9th Circuit, the question of whether Trump complied with the statute he cited to justify that deployment remains a live issue.
Trump could avoid that issue by instead relying on the Insurrection Act, which on its face gives the president alarmingly broad authority to deploy active-duty military personnel as well as National Guard members in response to domestic unrest such as the sometimes violent protests against Trump’s immigration crackdown. Since Trump has indicated he might do that, now is a good time to consider why there is wide agreement that the Insurrection Act, which descends from legislation that Congress approved between 1792 and 1871, is outmoded and dangerously broad.
The current version of the Insurrection Act includes three sections. The first, 10 USC 251, applies “whenever there is an insurrection in any State against its government.” In that situation, the president “may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.” Since this section envisions deployments only in response to state requests, it is not relevant to the current situation in California, where Trump has deployed about 4,000 National Guard members and about 700 U.S. Marines over the objections of local and state officials.
By contrast, the second section of the Insurrection Act, 10 USC 252, applies “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.” In that case, the president “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.” Section 252 gives the president much broader discretion than Section 251.
Likewise the third section of the Insurrection Act, 10 USC 253, which says the president, “by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy” in either of two situations. The first, which has been invoked by past presidents but does not seem relevant in this case, involves violations of constitutional rights that a state has proven unwilling or unable to protect. But Section 253 also applies when any of the listed forms of illegal activity “opposes or obstructs the execution” of federal laws or “impedes the course of justice under those laws.”
It seems highly doubtful that the intermittently violent protests against immigration raids have made it “impracticable” to enforce federal law in California. The case that Breyer heard, which involves Trump’s interpretation of 10 USC 12406, raises a similar issue, since the administration asserted that the protests had created a situation in which the president was “unable with the regular forces to execute the laws of the United States.”
Breyer thought that condition clearly had not been met. “The statute does not allow for the federalizing of the National Guard when the President faces obstacles that cause him to underperform in executin
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