1. We're probably going to start hearing about the "Insurrection Act" in the coming days—and the specter of domestic use of the military for law enforcement.
Here's a #thread on what it is, what it isn't, and why we shouldn't necessarily be alarmed that it's being discussed:
Here's a #thread on what it is, what it isn't, and why we shouldn't necessarily be alarmed that it's being discussed:
2. Its misleading name aside, the Insurrection Act is actually a series of statutes dating all the way back to 1792 through which Congress has given the President the power to "call out" the militia—and, as of 1807, the regular army—during three kinds of domestic emergencies.
3. Two of those emergencies are quintessentially military—invasions and insurrections. But the third is more ambiguous: to "execute the laws of the union." The idea was to be a backstop for circumstances in which civilian authorities were overwhelmed or otherwise unavailable.
4. Presidents have used the Act dozens of times, most recently when President George H.W. Bush invoked it in 1992 after the Rodney King riots to help restore order in Los Angeles. Most of the invocations have been for law enforcement—not to repel invasions/suppress insurrections.
5. The statute doesn't change any of the substantive laws (or constitutional rights) that govern federal law enforcement; it authorizes the President to use troops not only to _supplement_ civilian federal authorities, but to _supplant_ them, if necessary. Still a big deal, but:
6. Invoking the statute is not, of itself, curtailing civil liberties. The million-dollar question is what, exactly, the President is using the military to do. That's why most modern invocations of the Act, like the 1992 use in LA, have not been especially controversial.
7. Some of you may be wondering about the Posse Comitatus Act, an 1878 statute that is often understood as barring use of the military for _any_ domestic law enforcement.
But the PCA expressly exempts "circumstances expressly authorized by ... Congress":
law.cornell.edu/uscode/text/18…
But the PCA expressly exempts "circumstances expressly authorized by ... Congress":
law.cornell.edu/uscode/text/18…
8. All of this is to say that there is nothing _necessarily_ sinister about invoking the Insurrection Act during a domestic emergency when civilian federal law enforcement authorities may be hindered in their ability fully to perform their duties. The devil is in the details.
9. So if/when folks start talking about the Insurrection Act, don't jump right away to the visual of tanks rolling down our streets. We rightly fear the _potential_ coercive power of the military over our everyday lives, but the military also has needed capacities in emergencies.
10. Simply put, there's a lot of nuance here, and so whether or not you trust @realDonaldTrump (and I certainly don't), it's not hard to imagine potential scenarios in the coming days/weeks in which calling out the military for at least some purposes might make good sense.
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