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CNN: "Are we now living in a military state?" Discussion/ thoughts on Insurrection Act
Well, he did it. trump invoked the Insurrection Act, and is promising this will be extended nationwide. Watching CNN right now, Don Lemon is asking, "is the president declaring war on the American people?"
Thoughts?
Background reading:
The following Atlantic article discusses the legal and Constitutional issues regarding invoking the Insurrection Act. The discussion is in relation to immigration, but the concepts still apply, particularly in exploration of how the Act, and its use, has changed over time. It's worth it to read the entire article.
Yes, Trump Can Invoke the Insurrection Act to Deport Immigrants
Congress has delegated too much power to presidents.
https://www.theatlantic.com/ideas/archive/2019/05/can-trump-use-insurrection-act-stop-immigration/589690/
In other words, if the president determines that ordinary law enforcement is inadequate to enforce federal law, he can deploy the military to assist. And although Congress in the Posse Comitatus Act of 1878 generally prohibited use of the federal military for domestic law enforcement, the Insurrection Act was always understood as the principal exception to that general rule.
As documented in a comprehensive three-volume history by the U.S. Army’s Center for Military History, the Insurrection Act has therefore been used repeatedly throughout American history to help quell civil unrest—especially before the rise of well-trained (and increasingly well-equipped) modern local police forces. In virtually every case, the act was used in circumstances in which there was no serious dispute that local authorities were inadequate to the task at hand, and where domestic deployment of federal troops was seen as a means of restoring civil and civilian order, not subverting it.
Read: The alarming scope of the president’s emergency powers
But alongside the increasing capabilities of local law enforcement to handle domestic disorder has come increasing political opposition to domestic use of the military for the same purposes—as not only unnecessary, but also perhaps even coercive. It was politics more than any legal concerns that led President George W. Bush to decline to invoke the act to help restore order in Louisiana after Hurricane Katrina. Politics is also a big part of why we’re now in the longest period in American history without a domestic deployment of U.S. troops under the Insurrection Act; it’s been 27 years since President George H. W. Bush sent federal troops to Los Angeles to help restore order after the Rodney King riots. It’s not just that local authorities today can handle most law-enforcement crises; it’s that calling in federal troops (as opposed to the state National Guard) had, at least until now, come to be seen as crossing a constitutional Rubicon—a measure that should be saved for truly existential crises when there is no dispute over the need for federal military intervention.
Lawsuits will certainly challenge Trump’s invocation of the Insurrection Act to assist in immigration enforcement—a purpose for which it’s never previously been used. But the text of the statute would seem to be on the president’s side—underscoring just how broad the power is that Congress has delegated to the president, and just how much we have historically relied on political checks, rather than legal constraints, to circumscribe the president’s authority. As partisan tribalism has increasingly come to mark virtually every policy debate in Washington, those political checks have proved increasingly ineffective.
As documented in a comprehensive three-volume history by the U.S. Army’s Center for Military History, the Insurrection Act has therefore been used repeatedly throughout American history to help quell civil unrest—especially before the rise of well-trained (and increasingly well-equipped) modern local police forces. In virtually every case, the act was used in circumstances in which there was no serious dispute that local authorities were inadequate to the task at hand, and where domestic deployment of federal troops was seen as a means of restoring civil and civilian order, not subverting it.
Read: The alarming scope of the president’s emergency powers
But alongside the increasing capabilities of local law enforcement to handle domestic disorder has come increasing political opposition to domestic use of the military for the same purposes—as not only unnecessary, but also perhaps even coercive. It was politics more than any legal concerns that led President George W. Bush to decline to invoke the act to help restore order in Louisiana after Hurricane Katrina. Politics is also a big part of why we’re now in the longest period in American history without a domestic deployment of U.S. troops under the Insurrection Act; it’s been 27 years since President George H. W. Bush sent federal troops to Los Angeles to help restore order after the Rodney King riots. It’s not just that local authorities today can handle most law-enforcement crises; it’s that calling in federal troops (as opposed to the state National Guard) had, at least until now, come to be seen as crossing a constitutional Rubicon—a measure that should be saved for truly existential crises when there is no dispute over the need for federal military intervention.
Lawsuits will certainly challenge Trump’s invocation of the Insurrection Act to assist in immigration enforcement—a purpose for which it’s never previously been used. But the text of the statute would seem to be on the president’s side—underscoring just how broad the power is that Congress has delegated to the president, and just how much we have historically relied on political checks, rather than legal constraints, to circumscribe the president’s authority. As partisan tribalism has increasingly come to mark virtually every policy debate in Washington, those political checks have proved increasingly ineffective.
The following is a paper that explains and examines the role of PCA and Insurrection Act in preparation for proposing a PCA Court to provide judicial certification of any use of the IA. Interesting idea, but the main reason for posting this is in the usefulness of the initial examination of the two Acts. I admit I've only given it a partial skim so far.
Katrina, Federalism, and Military Law Enforcement: A New Exception to the Posse Comitatus Act
Sean McGrane, University of Michigan Law School
https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1273&context=mlr
Despite serving opposite sides of the federalism coin, the PCA and the Insurrection Act have coexisted in relative harmony for more than a century. The Insurrection Act carves out a narrow exception to the PCA, invoked only where an insurrection has arisen within a state, and where the local and state law enforcement agents are incapable of quelling the insurrection. The Insurrection Act authorizes the president to deploy troops for domestic law enforcement either when the state government requests such assistance or when the president makes an independent determination that the military is required to enforce federal law. In the latter instance, the president may deploy troops regardless of whether the state desires such assistance; indeed, he may deploy troops even when the state government expressly opposes such a move. In this instance, the federalism concerns are highest. But since the Civil War, the Insurrection Act has been invoked almost exclusively upon request by state governments. In the post-Civil War era, the president has deployed troops absent a state government's request for only one purpose-to integrate southern schools in the 1950s and 1960s.'4 Because the Insurrection Act remains a narrow exception to the PCA, and because the Act is rarely invoked without a state government's request, the limits of the Insurrection Act and the PCA have gone mostly untested for more than a century.
Edit to add:
https://en.wikipedia.org/wiki/Posse_Comitatus_Act
https://en.wikipedia.org/wiki/Insurrection_Act
31 replies
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I hope not. We can’t let Trump destroy our country. 
