Insurrection Act of 1807 – Title 10 U.S.C. §251-§255
Recently the President of the United States hinted that he may use United States Military forces to control violent outbreaks and looting in certain states where the violence appears to be out of control. There was also a reference to the term Martial Law and discussion on what sort of impact a presidential declaration of Martial Law may have upon citizens. We have received questions from many of you asking whether or not the president could use the military to quell the violence and 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 assist state and local authorities to protect the citizens of any state. This can happen in either of two ways; the President as Commander-in-Chief of the armed forces can order active duty Military forces into areas within States to offer assistance to local or state resources or he can order the State National Guard forces to operate under Federal authority (the latter is often referred to as being placed on title 10 orders).
The Insurrection Act of 1807
The Insurrection Act of 1807, later codified into law under Title 10 U.S.C. §251-§255 provides, in relevant part, that 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, he 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.
Civil Rights Protection
Under the civil rights protection portion of the Act, the president is authorized to use the armed forces to suppress any “insurrection, domestic violence, unlawful combination, or conspiracy” if law enforcement is hindered within a state, and local law enforcement is unable to 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 is not needed
Originally designed to implement the Fourteenth Amendment guarantee of equal protection, this portion of the act does not require or request the permission of the governor of the affected state.
Los Angeles Riots
This power was last invoked in 1992 in regard to the riots in Los Angeles. There the Act allowed the President to essentially federalize the National Guard and use them to gain control and stability within the city.
In the wake of Hurricane Katrina, the law was changed to provide even more expansive powers to the President. This change allowed the president to implement the act in cases involving a natural disaster or a terrorist attack.
What law would one be prosecuted under if arrested under Martial Law? Well, in the unlikely event that the federalized forces were used to actually execute arrests – versus simply acting as a force multiplier – it is likely that the Federal Law would apply. Thus, those arrested would be prosecuted in Federal Court. To be clear, however, this is speculation, since in those instances where Federal Military forces were used previously they simply assisted the police in ensuring peace was maintained and stayed clear of effecting arrests of protesting individuals.