Part One -Domestic Military Ops — Reforming the Insurrection Act

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Good Governance Paper No. 6 (Part One): Domestic Military Operations — Reforming the Insurrection Act
By: Mark Nevitt - 10-20-20

[Editors’ note: This essay is one in a series—the Good Governance Papers—organized by Just Security. In each essay, a leading expert will explore actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For more information and a complete list of the essays published so far, you can read the Introduction by the series’ editors.]

When can the president deploy the federal military on American soil? What are the legal and regulatory restraints in doing so? Throughout the current administration, these fundamental questions of civil-military relations and democratic governance have only grown in importance. This is due, in large part, to the rupture of longstanding norms. Salient examples include the significantly expanded deployment of military troops to the U.S.-Mexican border as well as the use or threatened use of state and federal military forces (many unidentified) in response to protests this summer in the aftermath of George Floyd’s death. The violent clearing of peaceful protestors from Lafayette Square Park on June 1 by both non-military and military forces brought the issue of domestic military operations to American living rooms—as did the President threatening minutes earlier to invoke the Insurrection Act and send active duty military forces into American cities.

The governance stakes are simply too high to rely upon now-violated norms. Congress should reinvigorate its constitutional role in governing domestic military operations and provide bright legal lines addressing the president’s authority to deploy the military domestically.

In this essay and the one to follow, I highlight four legal authorities governing domestic use of military force that are ripe for clarification and congressional action. This essay concerns the Insurrection Act, and my second essay will address the Posse Comitatus Act, Section 502(f) of Title 32 of the U.S. Code, and military operations in the nation’s capital.

The Insurrection Act’s Scope and Triggering Authorities

For over 200 years, Congress has provided broad authority to the president to deploy the military domestically via the Insurrection Act. This complicated law amalgamates parts of its original enactment in 1792 and a half dozen amendments since. It authorizes the president to deploy military forces—both standing federal forces and National Guard—for a wide swath of missions and reasons. While state governors can request federal military aid, the decision to deploy the military rests with the president alone—regardless of a Governor’s wishes.

As my colleague Steve Vladeck has astutely noted, the use of federal military forces (either federalized National Guard or regular members of the armed forces) has been constrained largely by historical practice and political considerations. Indeed, as a political matter, deploying the military domestically for law enforcement purposes has proven to be highly unpopular throughout American history. It has also generated confusion. President George W. Bush, for example, refused to use the Insurrection Act after Hurricane Katrina without a specific request from the Louisiana Governor. The last time the Insurrection Act was invoked and active duty federal troops were deployed on American streets was almost 30 years ago, during the 1992 Los Angeles riots at the request of the California Governor.

As Professor John Dehn and I have argued in Just Security, active duty U.S. troops are generally trained in standing rules of engagement (SROE), not standing rules for use of force (SRUF). Standing rules for use of force applies to military support to law enforcement, which requires shifting from a more permissive, combat-centric “ROE mindset” to a more constrained, self-defense oriented “RUF mindset.” As my colleagues Professors Steve Dycus and Bill Banks noted in Soldiers on the Home Front, there is a steep learning curve in making this shift. Failure to do so can have deadly results.

In the wake of President Donald Trump’s threat to invoke the Insurrection Act this past summer, enduring uncertainty about what exactly it might permit, and fears that the military will be pulled into election unrest, it’s time for legal clarification.

The Insurrection Act provides a menu of three triggering authorities, all of which require a presidential determination and “proclamation to disperse.” In particular, the president has enormously broad authorities and discretion to deploy the military domestically under the Act’s third provision.

First, the president can invoke the Insurrection Act at the request of a state governor “whenever there is an insurrection in any State against its government and the President considers it necessary to use the armed forces to suppress the insurrection.”

Second, the president may invoke the Insurrection Act without a specific state request when he 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 by the ordinary course of judicial proceedings.”

Third, and most problematically, the president may invoke the Insurrection Act to deploy military forces domestically without a state request or disruption of the courts, when in the president’s judgment there is interference with federal or state law—or, alarmingly, simply a conspiracy in opposition to federal law. This provision, found at 10 U.S.C. § 253, delegates to the president broad authority:

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.

This language (“shall take such measures as he considers necessary”) provides the president enormous discretion. Further, what, specifically, does “oppose or obstruct the execution of the law of the United States” or “impede the course of justice” mean? What activities might meet this threshold? How large does a “conspiracy” have to be? Is it a conspiracy that could trigger domestic deployment of the Marines if a handful of people conspire to violate federal law? That sounds ridiculous, but as written the statute provides few guidelines or guardrails. A Commander in Chief who disregards constitutional norms could treat 10 U.S.C. § 253 as a blank check for domestic military operations. This has broad implications for civil-military relations, our core principles of limited federal power, and of state, local, and civilian responsibility for law enforcement.

Further, if the president’s invocation of the Insurrection Act is challenged in court (the statute is silent on judicial review), courts may well defer to the president’s interpretation and judgment in applying the statute’s provisions. The president, after all, has been afforded broad national security deference in such cases—witness President Trump’s recent victories in Trump v. Hawaii and Trump v. Sierra Club. The Supreme Court previously allowed the Trump administration to continue construction of the U.S.-Mexico border wall in Trump v. Sierra Club, but just yesterday the Supreme Court granted cert on the lawsuit.

Finally, the Insurrection Act lacks a time-limit once invoked and does not envision a continual role for Congress through either notification or consultation. This is in stark contrast to timelines and reporting requirements for overseas military deployments.

Reinvigorate Congress’s Role in the Insurrection Act via Reporting & Accountability Procedures

To combat this longstanding and awesome delegation of authority, Congress should act. Following President Nixon’s use of emergency powers and the military, Congress held hearings and rewrote the body of law governing both national emergency declarations and presidential war powers. Ideally, Congress would do the same here, calling on a body of experts to look holistically at the law.

Action could take a variety of forms.

The most dramatic revision of the law could and should involve a wholesale repeal and replacement of the Insurrection Act that balances Congress’s critical role in day-to-day military matters while acknowledging the president’s constitutional authority to respond to bona fide emergencies. Congress should, for example, provide greater specificity on what “opposes or obstructs the executive of the laws of the United States” or “impedes the course of justice under those laws” means. It should precisely define insurrection, domestic violence, unlawful combination, or conspiracy for purposes of the statute. It should also make clear that exercise of this authority is affirmatively subject to judicial review. At the very least, pending wholesale replacement of the statute Congress should do three things.

First, Congress should mandate that the President report back to Congress after a set period of time* on the nature of the domestic military operation.

Second, Congress should require affirmative congressional authorization after a set number of days. This is what the president is already required to do in the War Powers Resolution for military deployments overseas. If we impose time limits for overseas military operations, shouldn’t we place similar legal guardrails for domestic military operations, where the civil liberties of the American people are most powerfully at stake? And indeed, I think the time limit should be shorter for this reason – 20 days, for example, rather than 60 as in the WPR.

Third, Congress should also broaden accountability beyond the President.

A new 10 U.S.C. § 256, added at the end of the existing statute, would do these three things, roughly mirror the War Power Resolution’s language, and read:

(a) Upon the declaration of an insurrection, domestic violence, unlawful combination, or conspiracy in accordance with 10 U.S.C. §§ 251-254, the President must make a written “Insurrection Act Report” (IAR) to Congress, justifying in detail the use of military forces and the estimated number of federal military forces involved. This report shall be made as soon as possible, but in no event more than 48 hours after the declaration is made.

(b) Prior to invoking authorities in 10 U.S.C. §§ 252-254, the President, Secretary of Defense and Chairman of the Joint Chiefs of Staff all must certify that the State, territory, or District of Columbia is unable or unwilling to suppress the domestic violence, unlawful combination, or conspiracy.

(c) The President in every possible instance shall consult with Congress before introducing federal military forces domestically or into situations where the Insurrection Act may be invoked, and after every such introduction shall consult regularly with the Congress until such federal troops have been removed.

(d) Within twenty calendar days after an “Insurrection Act Report” is submitted or is required to be submitted, the President shall terminate any use of federal military forces domestically unless the Congress (1) has enacted a specific authorization for such use of the United States Armed Forces; (2) has extended by law such twenty-day period; (3) is unable to meet as a result of an emergency; or (4) the state Governor or chief executive of the territory or District of Columbia affirmatively requests that the federal military forces remain.

(e) “Federal military forces” includes members of the armed forces or National Guard forces deployed pursuant to the Insurrection Act, 10 U.S.C. §§ 251-254.

The rupture in longstanding civil-military norms requires us to look with fresh eyes at the President’s broad, Insurrection Act authorities to deploy military forces on American soil. This summer’s crisis in civil-military relations should be seen as a much-needed opportunity to improve accountability over the use of federal military forces domestically and breathe life into congressional oversight. After all, we have legal reporting and consultation requirements prior to the deployment of military forces overseas in overseas hostile environments—shouldn’t similar legal guardrails be put in place for domestic deployments?

Part II too follow


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