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How the Insurrectionist Might Use the Insurrection Act to Go After Non-insurrectionists
🕑 Added 2025-02-10 06:33:30 +0000 UTCOA1123 - Insurrection enthusiast Donald Trump sure seems to be looking for an excuse to invoke the Insurrection Act of 1807 in a little-noticed section of one of his flurry of Inauguration Day executive orders. We review the history of how the Constitution and subsequent acts of Congress were written specifically to keep the President from deploying troops on US soil without a very good reason, and how and why the Act has been invoked 30 times in US history. When does civil disorder become an “insurrection” and when, if ever, can the President send in troops that a state hasn’t requested? And why is Trump so determined to declare an insurrection on the border?
10 USC 251-255 (colloquially known as “The Insurrection Act”)
“The President’s Authority to Commit Troops Domestically Under the Insurrection Act,” Harold Hongju Koh & Michael Loughlin, American Constitution Society (September 2020)
“Policy Brief: The U.S. Military May Be Used to Secure the Border,” Ken Cuccinelli & Adam Turner (3/24/24)
Insurrection Act of 2024 (IA updates proposed by Democrats)
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Comments
John Tanzer
The Philadelphia police bombed MOVE in 1985. Not the feds and from a helicopter not a bomber, but like Tulsa an important thing to note
Just a Little Guy
There are published cases on the Third Amendment (albeit not many), just no Supreme Court case. Off the top of my head, there’s a Second Circuit case regarding housing corrections officers in private homes.
David in Brooklyn
One significant point about the Constitution's grant of "Commander in Chief" status to the President is that it refers to the Army and Navy, and to (in effect) the National Guard in case of actual conflict, but the President is never "Commander-in-Chief" of the whole country as many on the Right would have it.
Kristen Leist
I concur with Gmork. I listen to and read the daily newsletter of professor of American history Heather Cox Richardson. From her I learned that during the Tulsa race massacre, in which the businesses and generational wealth of local Black Americans was destroyed, white people who owned airplanes used those planes to drop fire bombs, completing the destruction of homes and “Black Wall Street.” So not military aircraft, but the Tulsa massacre was the first incident of bombs dropped on an American city. If any part of this is wrong, it’s due to my recollection, not Prof Richardson’s knowledge of history.
Matt Cameron
Oh wow, i need to look that up. My authority on this was a book i read years back on the history of bill of rights litigation in which the 3rd amendment was simply noted to have had no published cases. I'm sure that book was published well after the 80s so they must have missed it too!
Charley Kelly, Bird Law Specialist
Hate to correct Matt on such a small point but there was at least one case, Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982), interpreted the 3rd Amendment and found that it prohibited housing the national guard in workers’ dorms during peacetime. Totally reasonable to overlook it though since it’s basically the only time this has ever been raised. Some plaintiffs tried to raise it in a 2015 case, Mitchell v. City of Henderson, 13-CV-1154, but the district court dismissed that portion of their complaint because it dealt with police officers rather than soldiers.
Matt Cameron
Mine too, i havent had time to look it up but my understanding was that blair mountain was the only time that us military aircraft were deployed to bomb us soil. (see also (with apologies for my inability to capitalize anything here) the philadelpha police firebombing move activists from a helicopter.)
Matt Cameron
Good catch--dyscalculia strikes again!
Gmork
Re Tulsa, my understanding is that there was no officially authorized use of planes by military, but that basically crop dusters or other private planes were illegally used to drop bombs.
Viola DeGamba
“capital R republican”; don’t you mean “small r republican”. I’ve always thought small d and small r are used to distinguish forms of government from party names.
Viola DeGamba
Misspoke: Shay’s Rebellion was 1786 not 1768.
