One of the most interesting legal phenomena of the Trump administration has been the increased use of—and public focus on—previously obscure federal statutes that delegate surprisingly broad power to the president. From using the National Emergencies Act to build his border wall and the Federal Vacancies Reform Act to control the upper echelons of the executive branch, to using the Trade Expansion Act to raise tariffs against Canada in the dubious name of “national security,” President Donald Trump has pursued an array of actions that at once seem to be both within the letter of these laws and an indictment of the open-endedness of their statutory delegations.
If The Daily Caller is correct, the latest addition to this list may soon be the Insurrection Act—which the president plans to use “to remove illegal immigrants from the United States,” the outlet reported yesterday. If the president does actually call out the U.S. military to help deport undocumented immigrants, that could be the most clearly lawful—and most historically indefensible—example of this phenomenon that we’ve seen to date.
The “Insurrection Act” is an umbrella term for a series of statutes that date all the way back to the Founding, and through which Congress has exercised its authority under Article I, Section 8, Clause 15 of the Constitution “to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” The Constitution’s drafters understood that there would be circumstances in which local authorities were inadequate to protect the populace and enforce the laws, and so went out of their way not only to identify three circumstances in which troops could be used, but also to give the power to delimit those circumstances to Congress, not the president.
As Justice Robert H. Jackson would write in his celebrated concurring opinion in the Steel Seizure case, during the Truman administration, the Constitution’s limitation on domestic use of the military to three sets of emergencies, “written at a time when the militia rather than a standing army was contemplated as the military weapon of the Republic, underscores the Constitution’s policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy.”
At first, Congress was both thoughtful and careful in how it delegated such crisis power to the president. A 1792 statute required a federal judge to sign off on the president’s determination that the militia needed to be called forth, and also imposed strict time limits on how long the president could use the militia (and which states’ militias he could use for different purposes). President George Washington hewed closely to those mandates in suppressing the 1794 Whiskey Rebellion—the first true domestic security crisis the country faced under the Constitution.
But Congress took the wrong lessons away from this early experience. In 1795, it removed some of the most important checks on the use of the militia for domestic emergencies. And far more significantly, in 1807, a one-sentence statute enacted on the very last day of the Ninth Congress (and signed into law, more than a little ironically, by President Thomas Jefferson) provided that the president could use federal regulars—the standing army of which the Founders had feared—in most of the circumstances in which resort to the militia had already been authorized.
Numerous statutory tweaks followed, but the structural features remained the same. Under the Insurrection Act as it stands today:
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.
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.
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 obvious lesson here, as with the National Emergencies Act, the Federal Vacancies Reform Act, the Trade Expansion Act, and others, is that Congress ought to put less faith into these political checks, and more teeth into substantive statutory limits on the president’s authorities. In the case of the Insurrection Act, some of us have been arguing as much for years. But that can’t—and won’t—happen until members of this (or any) president’s own party, and not just his opponents, privilege the separation of powers over the separation of parties.