Insurrection Act of 1807 – Title 10 U.S.C. §251-§255
In the past, the US President hinted that he might use US Military forces to control violent outbreaks and looting in states where the violence seems to be out of control. There was also a reference to the term Martial Law and a discussion on the impact a presidential declaration of Martial Law may have upon citizens. We have received many questions asking whether the president could use the military to quell the violence. As well as, if he does, what law would those arrested be prosecuted under? Let’s start with the first question.
Can the President use military forces on American Soil?
Yes. The President can use military forces to help state and local authorities protect any state’s citizens. This can happen in one of two ways. As Commander-in-Chief of the armed forces, the President can order active duty Military forces into areas within States to assist local or state resources. Additionally, he can call the State National Guard forces to operate under Federal authority.
The Insurrection Act of 1807
The Insurrection Act of 1807 states, in part, that when the President thinks that unlawful obstructions, combinations, assemblies, 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 the militia of any State and use the armed forces, as he deems necessary to enforce those laws or to suppress the rebellion.
Civil Rights Protection
The civil rights protection part of the Act allows the president to use the armed forces to stop any “insurrection, domestic violence, unlawful combination, or conspiracy.” However, only if law enforcement is hindered within a state, and local law enforcement cannot protect individuals, or the unlawful action “obstructs the execution of the laws of the United States or impedes the course of justice under those laws.”
Permission not needed
Originally designed to enact the Fourteenth Amendment guarantee of equal protection, this part of the act does not require the governor’s permission of the affected state.
Los Angeles Riots
The Insurrection Act of 1807 was last used by the President in 1992 during the riots in Los Angeles. The Act allowed the President to federalize the National Guard. Thereby using them to gain control and stability within the city.
Hurricane Katrina
In the wake of Hurricane Katrina, the law was changed to provide even more powers to the President. This change allowed the president to use the act in cases of a natural disaster or a terrorist attack.
Martial Law
If arrested under Martial Law, what law prosecutes? If the president used federalized forces to make arrests, the Federal Law would likely apply. Thus, the Federal Court would prosecute those detained. To be clear, however, this is speculation. Federal Military forces, in previous instances, helped the police to maintain peace. Additionally, they stayed clear of the arrests of protestors.
