The Insurrection Act, the law that allows Trump to appeal to the military

From the White House, Donald Trump speaks on the demonstrations of anger in the United States, June 1, 2020. REUTERS / Tom Brenner

Text by: Stefanie Schüler Follow

As protests continue in the United States a week after the death of George Floyd, Donald Trump has threatened to deploy the military to the streets. Interview with Christophe Cloutier-Roy, researcher in residence at the Raoul Dandurand Chair's Observatory on the United States.

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In the United States, protests against police violence, and in general against racism, continue. And they also degenerate in some cities despite the curfew installed. According to the American Constitution, it is up to the governors to maintain order on the national territory. But Donald Trump has threatened to deploy the federal military to the interior of the country, thanks to a law called the Insurrection Act.

RFI: What is this law, the " Insurrection Act ", invoked on Monday by Donald Trump to give himself the possibility of sending the American army to the various American cities which are today experiencing troubles after the death of George Floyd? 

Christophe Cloutier-Roy: This is a law that was passed a very long time ago. It dates back to 1807, at the time of the very beginning of the American Republic. It allows the American president to send federal troops or mobilize the National Guard - there is one per state - to restore order when there are major social unrest. This is the only way to mobilize troops inside the United States against the people. There are two ways to invoke this law. The first is that a governorate, which is responsible for security in its state, calls on the president to send the army. Second scenario: if the president judges that the federal laws are not applied in a state or that the constitutional rights are not respected there, he can request the National guard or send the army to restore order.

This explains, for example, why President Eisenhower in the 1950s and then President Kennedy in the 1960s sent troops to the southern United States to enforce Supreme Court rulings on the desegregation of public schools. It is because these two presidents judged that the constitutional rights were flouted that they estimated being able to send the troops while being based on the Insurrection Act of 1807. Even if the governors of the South had not made the asks the presidents.  

What are the precedents in American history in which this law has been invoked?

The law was invoked several times in the 19th and 20th centuries. There are generally three scenarios which led to the invocation of this law. Firstly, in the case of revolts, most of the time very localized, against the federal government which, especially in the 19th century, did not yet entirely control the entire national territory. Then, at the end of the 19th and the beginning of the 20th century, violent labor disputes also led to the dispatch of federal troops. And from the 1940s, the law was mainly invoked in the context of racial conflicts, such as the Detroit riots for example which decided President Franklin Roosevelt to send the federal army. And in the 1960s President Johnson used this law during several riots in the northern United States.

The most recent case dates back to 1992 after the beating of Rodney King in Los Angeles which resulted in violent riots. The governor of California then asked President George Bush to send troops. And finally President Bush had mobilized the California National Guard. This is the last time this law has been used.

When we look at the invocation of the Insurrection Act through its more than 200 years of existence, it remains something quite exceptional overall. And it remains controversial. However, the deployed army does not necessarily react violently. According to this law, the army must act in the least lethal way possible against its American citizens. But sending the military to the streets in the United States remains a very controversial decision that cannot be taken lightly. This is why most American administrations have abstained as much as possible from using it.

What is Donald Trump's goal today when he invokes the Insurrection Act?

I have the impression that it is mainly a rhetorical posture for the moment. President Trump is used to talking about major measures to deal with problems. It's his way of looking strong, of looking in control. And by presenting himself as the “president of law and order”, one might think that this is probably a theme that he wishes to put forward during the next election. But does he really want to follow through on his threat and use this Insurrection Act? It is much less certain even if it is not impossible. 

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