Monday, June 01, 2020

AN INSURRECTION ACT FOR THE TWENTY FIRST CENTURY

Thaddeus Hoffmeister*


Better twenty-four hours of riot, damage, and disorder than illegal use of troops.
President Theodore Roosevelt, as quoted in Clayton D. Laurie & Ronald H. Cole, The Role of Federal Military Forces in Domestic Disorders, 1877–1945, at 179 (Ctr. of Military History, U.S. Army 1997)

https://www.stetson.edu/law/lawreview/media/document/an-insurrection-act-for-the-twenty-first-century.pdf


I. INTRODUCTION

Hurricane Katrina, with 140 mile-per-hour winds, was one of
the deadliest natural disasters to ever strike the United States.2
It impacted more than 93,000 square miles, caused approximately
$100 billion in damage, and displaced more than 770,000 people.3
Worse still, it killed more than 1,300 people, leaving many families devastated.4

* © 2010, Thaddeus Hoffmeister. All rights reserved. Assistant Professor of Law,
University of Dayton School of Law. LL.M., Georgetown University School of Law; J.D.,
Northeastern University School of Law; B.A., Morgan State University. The Author is
currently a Major in the Army National Guard. Before joining the University of Dayton
School of Law faculty, the Author served as a Legislative Director, Counsel, and Subcommittee Staff Director in the United States House of Representatives for four years. He also served as a Judge Advocate General (JAG) in Korea, Japan, and Washington, District of
Columbia, and clerked for the Honorable Anne E. Thompson in the United States District
Court of New Jersey. This Article benefited from the helpful suggestions provided at legal
conferences conducted at both Wake Forest School of Law and Ohio State University
Moritz College of Law. A special thanks goes to Professors William C. Banks, Chris Brown,
Jeannette Cox, Eric Chaffee, Jackie Gardina, and Jason Mazzone for their useful and
constructive suggestions. The Author would also like to acknowledge the work of his
research assistant, Ashley Russell. Of course, any mistakes in this Article are solely the
responsibility of the Author. Finally, this Article was made possible by a generous summer
research grant from Dean Lisa Kloppenberg of the University of Dayton School of Law.

 1. President Theodore Roosevelt, as quoted in Clayton D. Laurie & Ronald H. Cole,
The Role of Federal Military Forces in Domestic Disorders, 1877–1945, at 179 (Ctr. of Military History, U.S. Army 1997).



Using the Insurrection Act and Executive Power to Respond with Force to Natural Disasters

ABSTRACT

In the wake of Hurricane Katrina, Congress amended the Insurrection Act of 1807. The Act enables the President to deploy the military “to suppress, in any State, any insurrection, domestic violence, unlawful combination, or conspiracy.” The amended Act expands the

language of the original Act to include natural disasters, epidemics, or other serious public health emergencies, terrorist attacks or incidents, or other conditions. Opponents of the amendment, most notably all fifty governors, criticize the amendment as a presidential power grab aimed at suppressing the power of the states and increasing the role of the military in domestic affairs.

This paper argues that the amendment to the Insurrection Act does not affect the President’s existing powers to deploy the military domestically. Instead, this paper argues that the amendment merely clarifies the situations that justify the use of the military to respond to domestic disorder.

 An analysis of the historical use of the Act and the Act’s language indicates that justification for presidential action prior to the amendment focused on the extent, rather than the source of the domestic disorder. The changes made in October of 2006 provide explicit examples of situations that may lead to events of public disorder justifying the President’s invocation of the Act’s authority. In addition, political and historical limitations, along with limitations in the Act itself, will restrict presidential abuse of the power. Thus, the uproar over the recent changes to the Insurrection Act and the fears of martial law are unfounded

https://www.law.berkeley.edu/library/resources/disasters/Crockett.pdf

Better twenty-four hours of riot, damage, and disorder than

illegal use of troops.
President Theodore Roosevelt, as quoted in Clayton D. Laurie & Ronald H. Cole, The Role of Federal Military Forces in Domestic Disorders, 1877–1945, at 179 (Ctr. of Military History, U.S. Army 1997)
https://plawiuk.blogspot.com/2020/06/an-insurrection-act-for-twenty-first.html

UPDATE: Trump invokes Insurrection Act to suppress national unrest

HITLER AFTER THE REICHSTAG FIRE, MUSSOLINI'S MARCH ON ROME

NEWS 
Updated 28 minutes ago
By
Tim Darnell
ArLuther Lee, The Atlanta Journal-Constitution

Declaring himself “the president of law and order,” President Donald Trump on Monday announced new measures to put down the “riots and lawlessness” that have gripped the nation since the death of George Floyd.

“My first duty is to defend our great country,” Trump said in a six-minute speech in the Rose Garden. “All Americans were rightly sickened and revolted by the death of George Floyd. I will fight to keep them safe,” he said.

The president then invoked the Insurrection Act of 1807, a federal law that allows the president to deploy military troops within the United States to suppress civil disorder, insurrection, and rebellion.

The president said he plans to mobilize the “thousands and thousands” of U.S. troops along with the National Guard to “dominate the streets” until the violence has been quelled, and will send military forces into states even if they do not give explicit consent for him to do so.

“My administration is fully committed that for George and his family, justice will be served,” Trump said. “He will not have died in vain. But we cannot allow the righteous cries of peaceful protesters to be drowned out by an angry mob.”

» MORE: What is Antifa? — the militant group Trump calls a terrorist organization

Trump blamed “professional anarchists” for the widespread rioting and mayhem, again mentioning the militant movement Antifa.

He called the previous night’s protests in front of the White House “a total disgrace.”


The first family had to be moved to a bunker for about an hour as the situation escalated.

Earlier, Attorney General William Barr stood across the street from the White House in Lafayette Park, surveying thousands of protesters who were being restrained by Secret Service and military police.

Nine large military trucks carrying troops with helmets on were parked outside the White House, according to reports.

Moments later, a wild scene ensued after authorities launched tear gas, rubber bullets and flash bangs at peaceful protesters in an effort to disperse the crowd about an hour before a curfew went into effect.

Explosions could be heard from the Rose Garden, according to reports.

After the crowds were cleared, Trump walked a block to St. John’s Episcopal Church, which was damaged in the protests the previous night.

The president was escorted by dozens of Secret Service agents.

After telling the nation’s governors that Washington, D.C., was under control during Sunday night’s violent protests and fires, President Donald Trump derided many governors as “weak” and demanded tougher crackdowns on burning and stealing among some demonstrations in the aftermath of another night of violent protests in dozens of American cities.

Earlier in the day, Trump spoke to governors on a video teleconference that also included law enforcement and “have to get much tougher” to end the uprisings.

“Most of you are weak,” Trump said. “You’ve got to arrest people, you have to track people, you have to put them in jail for 10 years and you’ll never see this stuff again. We’re doing it in Washington, D.C. We’re going to do something that people haven’t seen before.”

In audio obtained by @CBSNEws, Trump tells governors: "Washington was under very good control, but we’re going to have it under much more control. We’re going to pull in thousands of people." (more)— (@edokeefe)Jun 01 2020

Washington, D.C., was the site of several fires and violent protests Sunday night as the nation continues to reel with the racial and social aftershocks in the death of an unarmed black suspect in Minneapolis police custody.

The president urged the governors to deploy the National Guard, which he credited for helping calm the situation Sunday night in Minneapolis. He demanded that similarly tough measures be taken in cities that also experienced a spasm of violence, including New York, Philadelphia and Los Angeles.

The president told the governors they were making themselves "look like fools" for not calling up more of the National Guard as a show for force on city streets.

Attorney General Bill Barr, who was also on the call, told governors that a joint terrorist task force would be used to track agitators and urged local officials to "dominate" the streets and control, not react to crowds, and urged them to "go after troublemakers."

Several news and social media reports recounted violence throughout the city, including near the White House.

Outside of the White House— just saw police shoot flash bangs into the crowd after protestors threw bottles at police. Situation worsening... #DCProtests pic.twitter.com/WRXOaC8WVg— Scott Thuman (@ScottThuman) June 1, 2020

More than 50 Secret Service agents were injured in Sunday night’s violence, according to Fox News.

Trump was taken to an underground White House bunker amid protests Friday due to terroristic threats, according to reports. He was there only for a short time.


.@KerriKupecDOJ confirms that DOJ has deployed members of the US Marshals Service and DEA agents to assist Natl Guard troops responding to protests near the White House this evening. Acting US atty for DC Mike Sherwin is also involved in investigative efforts, Kupec says. @ABC— Alex Mallin (@alex_mallin) June 1, 2020

Trump is blaming ANTIFA as one of the sources for the protests that have rocked the nation since the death of George Floyd, who died while in Minneapolis police custody over Memorial Day weekend.

Police forces charge and disperse crowd - moments ago White House pic.twitter.com/ENIXSRmFSj— ilhan tanir (@WashingtonPoint) June 1, 2020

ANTIFA is regarded as a militant, left-wing, anti-fascist political activist movement in the United States.

»MORE: Who was George Floyd?

It is made up of autonomous activist groups that try to achieve their political objectives through direct action instead of policy reform.

Washington DC 7hours ago #DCsafe pic.twitter.com/ujPlOtPSXd— Ale (@a12345678_ale) June 1, 2020

Activists from the group reportedly have engaged in various protest tactics including property damage, physical violence and harassment against those whom they identify as fascist, racist or on the far right.

Fire burning inside the AFL CIO Building at 16th and I @nbcwashington @erika_news pic.twitter.com/AyGSgIF3ci— Tom Lynch (@TomLynch_) June 1, 2020

Trump said the U.S. will designate ANTIFA as a terrorist organization.

The United States of America will be designating ANTIFA as a Terrorist Organization.— Donald J. Trump (@realDonaldTrump) May 31, 2020

Trump did not appear in public on Sunday and was not scheduled to on Monday either.

In recent days security at the White House has been reinforced by the National Guard and additional personnel from the Secret Service and the U.S. Park Police.
BACKGROUNDER
Trump Mulls Declaring an Insurrection and Sending Military Into Cities
By Ed Kilgore


U.S. Army units deployed in Mississippi by John F. Kennedy in 1962. Photo: Donald Uhrbrock/The LIFE Images Collection via Getty Images


During the last few days, President Trump has bobbed and weaved in his reaction to the killing of George Floyd and the unrest that act unleashed. But as police-protester conflicts escalated and spread, he has grown more and more truculent, and more and more dismissive of the state and local officials (especially Democrats) trying to manage a difficult situation in the middle of a pandemic and an economic collapse.

Late last week he attacked Minneapolis’s “radical left” Mayor Jacob Frey, and threatened to “send in the National Guard and get the job done right.” That was a bit puzzling, since Governor Tim Walz had already called out and deployed the Guard, but most observers focused on Trump’s nasty invocation of the old racist riot-control slogan, “When the looting starts, the shooting starts,” which he unconvincingly tried to walk back later.

On Monday morning, Trump held a call with governors after a weekend of violent clashes. In comments one participant called “unhinged,” he ranted at his fellow chief executives for failing to act more repressively toward law-breaking protesters and opportunistic looters. At around the same time, Arkansas senator Tom Cotton, who once responded to calls for criminal-justice reform by stating that America had an “under-incarceration problem,” started encouraging Trump to take over the clampdown and send in the military:


Anarchy, rioting, and looting needs to end tonight.

If local law enforcement is overwhelmed and needs backup, let's see how tough these Antifa terrorists are when they're facing off with the 101st Airborne Division.

We need to have zero tolerance for this destruction.— Tom Cotton (@TomCottonAR) June 1, 2020

And before you knew it, Trump tweeted his agreement:


100% Correct. Thank you Tom! https://t.co/axdLX7kGNn— Donald J. Trump (@realDonaldTrump) June 1, 2020

Cognoscenti of presidential legal authority recognized Cotton’s tweet as a call for invocation of the Insurrection Act, which is the only way a president can send U.S. military units (as opposed to the National Guard, which can be deployed by governors or, with restrictions, by the president) into an active law-enforcement role. As the name suggests, it’s intended for rare emergency situations in which POTUS is willing to declare that there’s a rebellion underway that threatens a complete breakdown in authority. Its most famous recent usages were by Dwight D. Eisenhower and John F. Kennedy, who deployed troops to the Deep South to enforce desegregation court orders, recognizing that state and local officials in the region were entirely unwilling to do so themselves.

Less famously, Lyndon Johnson called in federal troops to help police in Washington, D.C., control riots following the assassination of Martin Luther King Jr. in 1968, though federal supervision of the District of Columbia meant no state or local authorities were bypassed. And most recently, George H.W. Bush sent military units into Los Angeles, where large and dangerous protests broke out following the acquittal of police officers who beat Rodney King — but he did so only at the request of California governor Pete Wilson.

If Trump orders widespread military deployments against the wishes of state and local officials to deal with civil unrest, it would be unprecedented — that is, unless you think of blue America as a renegade region like the Jim Crow South. But it’s clearly under consideration, as today’s White House press briefing indicated:


White House press secretary Kayleigh McEnany told reporters in Washington around the same time as Trump’s tweet that the Insurrection Act is “one of the tools” at his disposal, adding, “Whether the president decides to pursue that, that’s his prerogative.”

Perhaps it’s a bluff, and just a signal to the MAGA folk that Trump is the toughest dude in town. But it’s hard to imagine anything more divisive at this moment of national insecurity than the spectacle of U.S. military units invading our cities with the kind of bloodthirsty instructions Tom Cotton clearly relishes.

TRUMP DISCOVERS INSURRECTION ACT OF 1807

TRUMP DECLARES AMERICA UNDER INSURRECTION

HE DUSTS OFF THE INSURRECTION ACT OF 1807 FOR REALITY TV MEDIA SHOW OF HIM GOING FOR A PHOTO OP AT ST. JOHNS CHURCH. AFTER RANTING ABOUT ANTIFA AND INTERNATIONAL ANARCHISTS AT PRESSER IN THE ROSE GARDEN.


AND AS USUAL FOR TRUMP THERE IS ONLY ONE AMENDMENT THE SECOND AMENDMENT RIGHTS OF AMERICANS.

§252. Use of militia and armed forces to enforce Federal authority

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.  https://en.wikipedia.org/wiki/Insurrection_Act

ANARCHISTS WERE A FANTASY THREAT IN 1897, 1921, 1968, 1999, FRANK FALOUSY EX FBI MSNBC COMMENTATOR BELIEVES IN THE INTERNATIONAL ANARCHIST ORDER (IAO) THAT APPEARS AND USES DEMONSTRATIONS AS COVER FOR THEIR NEFARIOUS PLOTS AND ACTIONS. HE IS REFERING TO BLACK BLOC WHICH REMAINS LOCAL DESPITE ITS FACEBOOK AND TWITTER ACCOUNTS AT ANARCHY.ORG 

TEAR GAS SMOKE ROLLING ACROSS THE ROSE GARDEN AS TRUMP, WHO NEVER EXERCISE OR WALKS ANYWHERE, WALKS TO THE CHURCH ACROSS THE STREET


MASSIVE USE OF POLICE NATIONAL GUARD AND MILITARY TO ESCORT HIM AFTER CLEARING OUT PEACEFUL PROTESTERS. THEY WERE SURROUNDED AND ASSAULTED BY ARMOURED FORCES, MILITARY AND POLICE, FOLLOWED BY MOUNTED FORCES, CAVALRY, TWENTY MINUTES BEFORE CURFEW!

NICE TRICK BUT LET'S REMEMBER IT REQUIRES A STATE GOVENOR TO REQUEST FEDERAL AID FOR AN APPREHENDED INSURRECTION.


NO STATE GOVENOR HAS REQUESTED THIS AND DC IS NOT A STATE NOT EVEN A CITY STATE.


HE USED TONIGHTS NO QUESTIONS RANT TO DECLARE HIS CANDIDACY FOR AMERICAS PRESIDENT OF LAW AND ORDER.


AFTER THE PHOTO OP HE WILL RETURN TO THE WHITE HOUSE ...........

BUNKER 



POLITICO
The last time federal troops were deployed domestically under the 1807 Insurrection Act was to quell riots in Los Angeles in 1992. The Center of Military History has an exhaustive recounting of the use of active-duty military in domestic disorders. The Role of Federal Military Forces in Domestic Disorders, 1945–1992 fas.org/man/eprint/dis

In the wake of Hurricane Katrina, Congress amended the Insurrection Act of 1807. The. Act enables the President to deploy the military “to suppress, in any State ...

Graham Brookie@GrahamBrookie

For those keeping score at home: The President refused to invoke the Defense Production Act to mobilize and save lives quickly against COVID-19. But he didn't hesitate to invoke the 1807 Insurrection Act to deploy the military on American streets against protests.


AG Bill Barr walks in Lafayette Park as demonstrators gather for another night of protests over the death of George Floyd. National Guard troops have deployed near the White House after Pres. Trump said he wanted a military show of force. abcn.ws/3drsPzV



About Us. Just Security is based at the Reiss Center on Law and Security at New York University School of Law. Contact Us ...
Trump addresses nation regarding ongoing protests as police break up nearby demonstration


As police dispersed a peaceful protest outside the White House, President Trump spoke in the Rose Garden, calling for an end to “violence and destruction,” saying that he will deploy the US military if state governors do not reign in the protests that emerged in response to the death of George Floyd.





MULTIPLE LOUD BOOMS from the north (sounded like Lafayette Square Park) just shook the windows here at the White House as we sit in Rose Garden awaiting president. #dcprotest
The park police is now warning the protesters to leave. They have given three warnings over a loud speaker, and moved up to the barricade. Several rows of officers in the far part of this picture — mounted on horses and on foot.

4:32 PM · Jun 1, 2020Twitter for iPhone
Yes, Trump Can Invoke the Insurrection Act to Deport Immigrants. Congress has delegated too much power to presidents. May 17, 2019. Stephen I. Vladeck.