Insurrection Act

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The Insurrection Act consists of four statutes enacted at different times for different reasons that, when considered as a whole, provide the power that Presidents have used many times as the legal basis for using troops to enforce the law. The are four sections of the law.[1]

Whiskey Rebellion

Title 10, Section 334 was enacted in 1792 as the Calling Forth Act to give President George Washington authority to call forth the militia when in his judgment they were needed to repel invasions, suppress insurrections, or enforce the laws. To assure that this authority was not abused, a reluctant Congress specified that before using the troops, the President would have to issue a proclamation calling on the insurgents to disperse in a limited time.

Title 10, Section 331 is a combination of two laws. One was enacted in 1795 to correct weaknesses in the Calling Forth Act (1792) when it was used to suppress the Whiskey Rebellion in 1793. This law gave the President specific authority to call forth the militia upon the request of a governor or state legislature, if the governor were unable to apply for the assistance.

Insurrection Act of 1807

See also: Aaron Burr#Western Conspiracy

The second law was enacted in 1807 at the request of President Thomas Jefferson to extend Presidential authority to call forth the standing army as well at the militia. This section allows the President to use the armed forces to enforce the laws or suppress a rebellion whenever, in his opinion, unlawful obstructions, combinations, or assemblages or rebellion against the authority of the United States make it impractical to enforce the laws using the course of judicial proceedings.

Civil War

Title 10, Section 332 was enacted in 1861 at the request of President Abraham Lincoln to increase Presidential authority to use the militia and the regular army to suppress insurrections and enforce the laws. This law was the legal basis for waging the American Civil War. This law allows the President to use federal troops on his own initiative and act on his own judgment without waiting for a request from a governor.

Posse Comitatus Act

Title 10, Section 333 was enacted in 1869 at the request of President U. S. Grant to empower him to use federal troops to suppress the Ku Klux Klan during Reconstruction. The original version of this law said that it was the duty of the President to use the armed forces or militia to respond to insurrection, domestic violence, unlawful combination, or conspiracies that deprive any portion or class of people their Constitutional rights and privileges when state authorities are unable or refuse to protect such people.

The Insurrection Act empowers the President, either upon his own initiative or at the request of a governor to use federal troops to address a variety of civil disturbances that could be provoked by a major terrorist attack. Sections 332 and 333 make it clear that it is up to the President to determine when and where to use federal troops to enforce the laws.

United States Code Title 18, Section 1385 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 the Air Forces 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.

The law pertains to the use of the Army or Air Force to execute the laws as a member of a “posse comitatus” formed by a U.S. Attorney, U.S. marshal, a sheriff, law enforcement officer, or other public official or private citizen.

See also