The Insurrection Act and Posse Comitatus Act: Understanding the President’s Power to Deploy the Military on American Soil

The United States military has long been seen as a unit of defense and protection overseas, but in the current political climate of distrust in local law enforcement, we have now come to consider whether this overseas protector is needed at our doorsteps. Due to recent events, such as the inhumane murder of George Floyd and the civil unrest that followed, this consideration to deploy the military on American soil has been brought to the forefront of the public’s attention. Notably, President Trump remarked that he would invoke two laws that would allow him to suppress any civil unrest that may pose a threat to American sovereignty. Of course, the president’s considerations are not raised without concern, anxiety, and misinformation, as such laws may create a potential rift between the valued concept of American liberty and a potentially misused autocratic dictatorship. Therefore, to ease public understanding, we will examine the president’s powers in regard to deploying troops on American soil, particularly via two laws that grant this power to him: The Insurrection Act of 1807 and The Posse Comitatus Act of 1878.

The Insurrection Act of 1807 was signed into law by President Thomas Jefferson during a time of American civil unrest. The law has five main components and the first component describes the president’s ability to quell unrest in a state that is unable to dispel an insurrection.[1] This is written in §251 as:

“Whenever there is an insurrection in any State against its government, 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.” [2]

The second section grants the president the power to deploy the military in any of the fifty states, should a state’s legislature or governor request it. The amount of troops deployed is determined by the state and not the president. It is important to note that in this section, it is at the state’s sole discretion whether to request assistance or not. This, however, seems to become completely superseded by §252 and §253, which grant the president unilateral power to deploy armed forces across the entire country in order to maintain U.S. sovereignty, regardless of any request. This is written in §252 as:

“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.”[3]

This section makes it clear that a president does not need a state’s permission but rather can choose to deploy the military across the country if they deem it necessary to enforce federal law and protect U.S. sovereignty. However, if one stops here, it could be falsely assumed that this power is granted in cases that only threaten the overall sovereignty of the United States and not a single state. However, the assumption that this power can be utilized "whenever the President considers," even in cases that threaten the sovereignty of an individual state, should be deemed false. In order to better understand the scope of these powers, we look at §253.

The third component, §253, tries to reign in on any unilateral deployment by providing necessary context as to when the president can invoke §252. In §253, it is written that:

“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, if it—

(1)  so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or

(2)  opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.” [4]

Clauses (1) and (2) of §253 help to narrowly define when a president has the legal power to deploy troops in any State, regardless of whether a State requests assistance. This is done by providing us with specific examples of when a president would be authorized, such as: when a State is incapable of executing its own laws, when a State cannot provide its citizens with their Constitutional protections, or when a State is obstructing or refusing to comply with the execution of federal laws within its borders.

The fourth component of the Insurrection Act is §254 of 10 USC Ch. 13. §254 is written out as: “Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time.”[5] This component is essentially a command that orders the president to try and dispel the insurrection peacefully before having to resort to violent or lethal means. It is important to note the verbiage of “by proclamation” as it implies a message that only the general public will understand. This may lead to potential implications in which certain groups of the public, particularly those who are impaired or disabled will not receive or understand the warning to disperse.

The fifth and final component of the Insurrection Act is 10 USC Ch. 13, §255, which is written as: “For purposes of this chapter, the term ‘State’ includes Guam and the Virgin Islands.”[6] This component is self-explanatory, as it states that the president’s powers and ability to invoke the Insurrection Act will also extend to U.S. territories, including Guam and the Virgin Islands. Although the Insurrection Act appears to be well regulated, so that it may only be invoked when American sovereignty is at risk, it is important to note that it is ultimately up to the president to decide when American sovereignty is at risk. This of course opens discussion and puts under intense scrutiny when a president can or should invoke the Insurrection Act.

The Posse Comitatus (Latin for “power of a county”)[7] Act of 1878 was signed into law by President Rutherford B. Hayes in order to limit federal military personnel from enforcing domestic policies. It is important to note the distinction between federal military personnel, such as those serving in the U.S. Army, and State military personnel, such as those serving in their State’s National Guard, since State military personnel as well as the U.S. Coast Guard are exempted by the Act[8]. The Posse Comitatus Act is listed in 18 U.S. Code § 1385 and is written as: “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”[9] The law, in simplest terms, states that the use of the U.S. Army or Air Force as an enforcer of domestic law is not only prohibited but punishable unless authorized by the Constitution or Congress. The Act, however, has many exemptions and limitations that are not covered within the Act itself. For example, the Act only prohibits the U.S. Army and Air Force but does not prohibit the Marine Corp and Navy from operating on U.S. soil unless specifically designated to by the Secretary of Defense.[10] Other exemptions include aiding local law enforcement agencies when a task is considered out of operational capability for said local law enforcement. This includes: counter-drug and counter-transnational organized crime assistance,[11] assistance in the case of crimes involving nuclear materials,[12] and emergency situations involving weapons of mass destruction.[13]

The Insurrection Act and Posse Comitatus Act are two laws that are currently under heavy scrutiny, especially given the current political climate. Because of their relevance, it is important to not only understand their purpose but to also recognize false assumptions that commonly stem from these acts. The Insurrection Act and Posse Comitatus Act can cause unnecessary anxiety and misinformation as a result of media portrayal. Therefore, my intent is to clarify the legal jargon, allowing all citizens to be well-informed on these legislative acts and to make their own objectively-based assessment of the law and its implications.

References 

[1] “10 U.S. Code Chapter 13 - INSURRECTION.” Cornell Law School LII / Legal Information Institute, December 23, 1992. law.cornell.edu/uscode/text/10/subtitle-A/part-I/chapter-13.

[2] “10 U.S. Code § 251 -  Interference with State and Federal Law.” Cornell Law School LII / Legal Information Institute, October 17, 1992. law.cornell.edu/uscode/text/10/251.

[3] “10 U.S. Code § 252 -  Interference with State and Federal Law.” Cornell Law School LII / Legal Information Institute, October 17, 1992. law.cornell.edu/uscode/text/10/252.

[4] “10 U.S. Code § 253 -  Interference with State and Federal Law.” Cornell Law School LII / Legal Information Institute, October 17, 1992. law.cornell.edu/uscode/text/10/253.

[5] “10 U.S. Code § 254 -  Interference with State and Federal Law.” Cornell Law School LII / Legal Information Institute, October 17, 1992. law.cornell.edu/uscode/text/10/254. 

[6] “10 U.S. Code § 255 -  Interference with State and Federal Law.” Cornell Law School LII / Legal Information Institute, October 17, 1992. law.cornell.edu/uscode/text/10/255.

[7] “Definition of POSSE COMITATUS.” Merriam-Webster, n.d. merriam-webster.com/dictionary/posse%20comitatus.

[8] “The Posse Comitatus Act.” U.S. Northern Command, September 23, 2019. northcom.mil/Newsroom/Fact-Sheets/Article-View/Article/563993/the-posse-comitatus-act/.

[9] “The Posse Comitatus Act.”, U.S. Northern Command  

[10] “10 U.S. Code § 275 -  Restriction on Direct Participation by Military Personnel.” Cornell Law School LII / Legal Information Institute, December 1, 1992. law.cornell.edu/uscode/text/10/275.

[11] “10 U.S. Code § 284 -  Support for Counterdrug Activities and Activities to Counter Transnational Organized Crime.” Cornell Law School LII / Legal Information Institute, December 23, 1992. law.cornell.edu/uscode/text/10/284.

[12] “18 U.S. Code § 831 -  Prohibited Transactions Involving Nuclear Materials.” Cornell Law School LII / Legal Information Institute, October 18, 1992. law.cornell.edu/uscode/text/18/831.

[13] “10 U.S. Code § 282 -  Emergency Situations Involving Weapons of Mass Destruction.” Cornell Law School LII / Legal Information Institute, September 23, 1992. law.cornell.edu/uscode/text/10/282.