Insurrection Act
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The Insurrection Act of 1807 is the set of laws that govern the President of the United States of America's ability to deploy troops within the United States to put down lawlessness, insurrection and rebellion. The laws are chiefly contained in 10 U.S.C. § 331 - 10 U.S.C. § 335. The general aim is to limit Presidential power as much as possible, relying on state and local governments for initial response in the event of insurrection. Coupled with the Posse Comitatus Act, Presidential powers for law enforcement are limited and delayed.
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[edit] Recent changes
On September 30, 2006, the Congress modified the Insurrection Act as part of the 2007 Defense Authorization Bill. Section 1076 of the new law changes Sec. 333 of the "Insurrection Act," and widens the President's ability to deploy troops within the United States to enforce the laws. Under this act, the President may also deploy troops as a police force during a natural disaster, epidemic, serious public health emergency, terrorist attack, or other condition, when the President determines that the authorities of the state are incapable of maintaining public order. The bill also modified Sec. 334 of the Insurrection Act, giving the President authority to order the dispersal of either insurgents or "those obstructing the enforcement of the laws."
The new law changed the name of the chapter from "Insurrection" to "Enforcement of the Laws to Restore Public Order."
[edit] Efforts to repeal changes
On February 7, 2007, Sen. Patrick Leahy (D-VT) and Sen. Kit Bond (R-MO) introduced legislation that would revert the Insurrection Act to its previous state.[1][2] Sen. Leahy argues that the modifications to the law make it unnecessarily easy to assert federal authority over national guard elements without the consent of governors, and that the changes removed a "useful friction" that existed between the Insurrection Act and the Posse Comitatus Act.
[edit] Criticism of changes
The new changes are criticized as a movement towards martial law because of the quiet inclusion of changes that undermines applicability of the Posse Comitatus Act (PCA) due to expansion of the circumstances under which the President may declare martial law. Similar to events that led to the Enabling Act of 1933 in Germany, critics contend that the federal government is taking steps to quietly increase the power of the federal authority over the regions while simultaneously increasing executive control specifically for policing the domestic population through legal use of the military.
The changes to the Insurrection Act impact the relevance of the 1878 Posse Comitatus Act because it removes many of the conditions under which the PCA would have applied. The PCA reads "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." Since those cases and circumstances have now been changed in the Insurrection act to be extremely broad, the PCA has essentially been made moot.
Senator Patrick Leahy (D-VT) expressed on September 19th, 2006 [3] "we certainly do not need to make it easier for Presidents to declare martial law. Invoking the Insurrection Act and using the military for law enforcement activities goes against some of the central tenets of our democracy. It creates needless tension among the various levels of government – one can easily envision governors and mayors in charge of an emergency having to constantly look over their shoulders while someone who has never visited their communities gives the orders."
No mention of Section 1076, although clearly a significant and controversial change, was made in the President's statement about H.R. 5122. This section now [4] allows the President to declare a public emergency and station the military anywhere in America and take control of state-based National Guard units without the consent of the governor or local authorities. Although the President mentioned numerous other sections, he clearly indicated that the Bill only [5] "...authorizes funding for the defense of the United States and its interests abroad, for military construction, for national security-related energy programs, and for maritime security-related transportation programs." The Defense Authorization Bill is meant to approve base military funding, and this carefully worded official statement omits any mention of new rules related to domestic policing by federal troops at the order of the President.
Public outcry in response to the Hurricane Katrina disaster may be associated with the President's decision to increase federal control. However, controversy surrounding the federal delay to allow National Guard elements to be activated has centered around the lack of preparedness and slow response by the President and his administration ("a fog of bureaucracy" [6]), rather than any evidence of a need for more broadly defined terms under which the federal military can take control of domestic policing. [7]
Criticism in 1997 of weakening the PCA and using the federal military for domestic conditions charged that it endangered the military and the US[8]:
The PCA's exceptions-in-name and exceptions-in-fact endanger the military and the United States by blurring the traditional line between military and civilian roles, undermining civilian control of the military, damaging military readiness, and providing the wrong tool for the job. Besides the current drug interdiction exceptions, the 104th Congress considered two bills to create new exceptions to the PCA. The Border Integrity Act would have created an exception to allow direct military enforcement of immigration and customs laws in border areas. The Comprehensive Antiterrorism Act would have allowed military involvement in investigations of chemical and biological weapons. [...] Increasing direct military involvement in law enforcement through border policing--an exception-in-fact--is an easy case against which to argue. Investigative support--an exception-in-name--is passive, indirect enforcement. Drug interdiction--an exception-in-name for the most part--falls between border policing and investigative support because of the extensive military involvement.
This case was also argued by the Departments of Justice and Defence in 1979 [9]:
The [PCA] expresses one of the clearest political traditions in Anglo-American history: that using military power to enforce the civilian law is harmful to both civilian and military interests. The authors of the [PCA] drew upon a melancholy history of military rule for evidence that even the best intentioned use of the Armed Forces to govern the civil population may lead to unfortunate consequences. They knew, moreover, that military involvement in civilian affairs consumed resources needed for national defense and drew the Armed Forces into political and legal quarrels that could only harm their ability to defend the country. Accordingly, they intended that the Armed Forces be used in law enforcement only in those serious cases to which the ordinary processes of civilian law were incapable of responding.
The silent revision to the Insurrection Act to ignore and/or evade the controls set forth by the PCA thus may be seen as going against "one of the clearest political traditions in Anglo-American history".
[edit] Rebuttal to criticism
The use of the military in a domestic role is significantly constrained by the Posse Comitatus Act. As such, the basic principle of the Posse Comitatus Act is generally seen as a restriction on even explicitly allowable uses of the military in domestic roles. However, under the explicit "Act of Congress" exemption in the Posse Comitatus Act, the Insurrection Act explicitly allows for the use of the national armed forces or the State national guard in federal service in certain events. Those events became more broadly defined by the recent amendment to the wording, but the specific conditions under which the military can be used have not changed, as described in the Discussion of Changes section, below. A broader range of events may now lead to those conditions, however; see the Differences between old and new wording section, below.
[edit] Posse Comitatus Act does not apply
Posse Comitatus has an explicit exception for use of military forces in domestic conditions when allowed by "Act of Congress". The Insurrection Act, as previously and currently worded, is such an Act of Congress. (An "Act of Congress" is "a statute or resolution adopted by both houses of the United States Congress" that is usually also accepted and signed by the President. The Insurrection Act of 1807 and the John Warner National Defense Authorization Act for Fiscal Year 2007 are two such acts.)
The entire text of the Posse Comitatus Act is as follows:
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- "Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the 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".
Because the Insurrection Act of 1807 and the John Warner National Defense Authorization Act for Fiscal Year 2007 are both duly enacted "Acts of Congress", the clause "except in cases and under circumstances expressly authorized by the Constitution or Act of Congress" clearly exempts these Acts from the Posse Comitatus Act. Because of this the Insurrection Act, as previously and currently worded, is explicitly not covered by the Posse Comitatus Act ([10] - see p.244, "Key exceptions to the Posse Comitatus Act", bullet point 2, and associated footnote 4; [11] - see footnote 130).
That the provisions of the Insurrection Act are expanded is not relevant to its lack of coverage by the Posse Comitatus Act; because the Posse Comitatus Act includes an explicit exception for an "Act of Congress", the Posse Comitatus Act never applied to the Insurrection Act, as originally worded, or as amended.
[edit] Attention given to Insurrection Act changes
While there was not much fanfare about this update to the Insurrection Act, modification of existing statutes is common in larger bills, including appropriations bills. Section 1042 is titled ''Use of the Armed Forces in major public emergencies," and as it is relevant to the armed forces of the United States, it is reasonable to include it in a defense bill. The bill includes over 3100 sections that amount to almost 1000 pages, so it is not surprising that the signing statement on the bill would leave out reference to a particular section while mentioning others. Further, there are many other areas of the bill that don't explicitly fall under the President's description in the signing statement, such as:
- Sec. 1021. Extension of availability of funds for unified counterdrug and counterterrorism campaign in Colombia.
- Sec. 1041. Enhancement of authority to pay monetary rewards for assistance in combating terrorism.
- Sec. 1086. Court security improvements.
- Sec. 1088. Improved accountability for competitive contracting in hurricane recovery.
- Sec. 1094. Patent term extensions for the badges of the American Legion, the American Legion Women's Auxiliary, and the Sons of the American Legion.
- Sec. 1303. Extension of temporary authority to waive limitation on funding for chemical weapons destruction facility in Russia.
- Sec. 2827. Modification of land transfer authority, Potomac Annex, District of Columbia.
- Sec. 3121. Education of future nuclear engineers.
Also, the use of signing statements to modify the meaning of duly enacted laws is a controversial feature of the current administration, and not adding qualifications via a signing statement to the wording revisions of the Insurrection Act would be interpreted as a positive move by those who wish to restrict such usage.
Because Senator Leahy spoke about the inclusion of the changes on various occasions [12][13][14] before the bill was passed and signed, it is reasonable to believe that members of Congress were aware of the specific changes to the Insurrection Act. If the changes warranted grave concern, members of Congress had time to act to make changes, or, at a minimum, raise public awareness.
[edit] Discussion of changes
The 2007 Defense Authorization Bill, with over $500 billion allocated to the military, and which also containined the changes to the Insurrection Act of 1807, was passed by a bipartisan majority of both houses of Congress: 398-23 in the House and by unanimous consent in the Senate.[15] In order for military forces to be used under the provisions of the revised Insurrection Act, the following conditions must be met:
- (1) The President may employ the armed forces, including the National Guard in Federal service, to--
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- (A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that--
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- (i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and
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- (ii) such violence results in a condition described in paragraph (2); or
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- (B) suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy results in a condition described in paragraph (2).
- (2) A condition described in this paragraph is a condition that--
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- (A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, 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 or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
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- (B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
[edit] Differences between old and new wording
The original wording of the Act required the conditions as worded in Paragraph (2), above, to be met as the result of
- insurrection, domestic violence, unlawful combination, or conspiracy
The new wording of the Act, as amended, still requires the same conditions as worded in Paragraph (2), above, but those conditions can now also be a result of
- natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition
and only if
- domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order.
Congress was granted the right to be informed immediately and every 14 days thereafter during the exercise of federal authority under these conditions.
[edit] Flowchart illustrating differences in application
[edit] Comparison of differences
Below is a comparison between the previous and current wording of 10 U.S.C. § 331 - 10 U.S.C. § 335 with new or revised sections and wording in bold (with the exception of paragraph and formatting notation):
| Original Insurrection Act of 1807 | As amended by 2007 Defense Appropriations Bill |
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§ 331. Federal aid for State governments Whenever there is an insurrections 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. |
No change |
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§ 332. 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 or Territory 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. |
No change |
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§ 333. Interference with State and Federal law 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—
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. |
§ 333. Major public emergencies; interference with State and Federal law (a) USE OF ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.--
(b) NOTICE TO CONGRESS.-- The President shall notify Congress of the determination to exercise the authority in subsection (a)(1)(A) as soon as practicable after the determination and every 14 days thereafter during the duration of the exercise of the authority. |
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§ 334. Proclamation to disperse 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. |
§ 334. Proclamation to disperse 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 or those obstructing the enforcement of the laws to disperse and retire peaceably to their abodes within a limited time. |
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§ 335. Guam and Virgin Islands included as “State” For purposes of this chapter, the term “State” includes the unincorporated territories of Guam and the Virgin Islands. |
No change; words "or possession" added after each instance of "State" in § 333. |
[edit] External links
- President's Statement on H.R.5122
- Hill’s National Guard Advocates Hold News Conference To Protest DOD Bill’s Proposed Decisions On National Guard
- Remarks Of Sen. Patrick Leahy, National Defense Authorization Act For Fiscal Year 2007, Conference Report, Congressional Record, September 29, 2006
- Congressional Research Service Report for Congress, "The Use of Federal Troops for Disaster Assistance: Legal Issues," by Jennifer K. Elsea, Legislative Attorney, August 14, 2006
- US Code Title 10 Chapter 15 from Cornell Law School
- Text of National Defense Authorization Act for Fiscal Year 2007, Public Law No: 109-364.
- Defense: FY2007 Authorization and Appropriations
- Bush Moves Toward Martial Law (Opinion)
- THE POSSE COMITATUS ACT: A PRINCIPLE IN NEED OF RENEWAL
- The Enabling Act of 1933
