Friday, June 5, 2020

The Insurrection Act of 1807

Thomas Jefferson

It's all the rage the last few days for Republicans to maunder on about the Insurrection Act of 1807, to justify Donald Trump's use of force against peaceful demonstrators.  I am not a lawyer, so I am not going to try to make any definitive statement about this law, which has been used many times in the intervening 213 years, but I thought I would provide some resources for people who want to know more about it.

First, here is the text of the original law, as it stood in 1807:


Insurrection Act of 1807An Act authorizing the employment of the land and naval forces of the United States, in cases of insurrections

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.

APPROVED, March 3, 1807.

Well, okay.  The law has been amended several times since its initial passage.  Here is a link to the full law as it stands today.

Trump's current justification for the use of the law depends, as far as I can tell, on the following amendment:

Sec. 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 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.

Here is a photo of possibly the most famous use of the act, other than the despicable use of it to disperse the Bonus Army by President Hoover and General Douglas MacArthur in 1932, which you can read about here, if you are not familiar with it. This photo is of US troops in 1957, ordered out by President Eisenhower to protect black students against a white mob enraged by the desegregation of schools in the south:



Before commenting further, I want to recommend some resources for those who want to know more.  Here is an article from NPR, and here is one from the Washington Post.  Between them, they provide, as far as I can tell, a pretty fair explanation of the meaning and history of the act.  And if you want to know more, and feel up to it, here is a more technical discussion of the act from the Berkeley law school.

I won't occupy your time with my own comments on these articles, but I do have some thoughts about section 332.  I am not a lawyer, so the following relies on a common language reading of the text, just to be clear.

Section 332 permits the President to use Federal troops in the United States "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."

Given that the Constitution guarantees "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances," I wonder what kind of mental gymnastics are necessary to convince one's self that a peaceable protest in a public area outside the White House makes it in any way  "impracticable to enforce the laws of the United States."  In fact, that peaceful protest is a direct application of the laws of the United States, as enumerated in the Constitution.  Is it not, in reality, Donald Trump and his troops who are making it  "impracticable to enforce the laws of the United States?"

Of course, Trump and his criminal administration, abetted by numerous Republican toadies, have already fabricated a host of lies to pretend that these peaceful demonstrators were up to some abominable crime.  However, even if those lies were true, can anyone seriously propose that this small demonstration made it "impracticable to enforce the laws of the United States," in any meaningful way?

Like just about everything Trump has done in the last three and a half years, his actions against these protesters have twisted American law into an attack on the American people and their right to live a decent life.  Hey, maybe someone wants to make the argument that the law allows its application "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," and that Donald Trump actually believes that this threat exists.  But in that case, he is clearly far too deranged and ignorant of our history to be allowed to continue for one more day as our President.  In all other readings of the current facts, he is nothing but a would-be dictator trying to claim the right to use the military to protect himself against the revulsion of his own people.


3 comments:

Isaac said...
This comment has been removed by the author.
Isaac said...

What the act actually says: "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."

The way Donald Trump reads the act: "Whenever the President is bored, wants to distract from the latest negative news reports about him, or just for shits and giggles, he may use the military any way he wants, for any reason he wants, especially against people who don't recognize his overwhelming magnificence."

Green Eagle said...

Mitch McConnell will be amending the law to say exactly that any day now, except that it will end with the words, "as long as he is a Republican, of course."