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The Insurrection Act of 1807 is the set of laws that govern the US President's ability to deploy troops within the United States to put down lawlessness, insurrection and rebellion. The laws are chiefly contained in 10 U.S.C. § 331 - 10 U.S.C. § 335. The general aim is to limit Presidential power as much as possible, relying on state and local governments for initial response in the event of insurrection. Coupled with the Posse Comitatus Act, Presidential powers for law enforcement are limited and delayed.

Contents

Relation to Posse Comitatus

The entire text of the Posse Comitatus Act, as amended in 1956, is as follows:

18 U.S.C. § 1385 - Use of Army and Air Force as posse comitatus
"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 Force 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".

Accordingly, actions taken under the Insurrection Act have always been exempt from the Posse Comitatus Act.[1][2]

Amendments of 2006

On September 30, 2006, the Congress modified the Insurrection Act as part of the 2007 Defense Authorization Bill (repealed as of 2008). Section 1076 of the law changed Sec. 333 of the "Insurrection Act," and widened the President's ability to deploy troops within the United States to enforce the laws. Under this act, the President may also deploy troops as a police force during a natural disaster, epidemic, serious public health emergency, terrorist attack, or other condition, when the President determines that the authorities of the state are incapable of maintaining public order. The bill also modified Sec. 334 of the Insurrection Act, giving the President authority to order the dispersal of either insurgents or "those obstructing the enforcement of the laws." The law changed the name of the chapter from "Insurrection" to "Enforcement of the Laws to Restore Public Order."

The 2008 Defense Authorization Bill, repeals the changes made in the 2007 bill. [3]

The 2007 Defense Authorization Bill, with over $500 billion allocated to the military, and which also contained the changes to the Insurrection Act of 1807, was passed by a bipartisan majority of both houses of Congress: 398-23 in the House and by unanimous consent in the Senate.[1] For military forces to be used under the provisions of the revised Insurrection Act, the following conditions must be met:

(1) The President may employ the armed forces, including the National Guard in Federal service, to--
(A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that--
(i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and
(ii) such violence results in a condition described in paragraph (2); or
(B) suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy results in a condition described in paragraph (2).
(2) A condition described in this paragraph is a condition that--
(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

Differences between old and new wording

The original wording of the Act required the conditions as worded in Paragraph (2), above, to be met as the result of

insurrection, domestic violence, unlawful combination, or conspiracy

The new wording of the Act, as amended, still requires the same conditions as worded in Paragraph (2), above, but those conditions could, after the changes, also be a result of

natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition

and only if

domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order.

Congress was granted the right to be informed immediately and every 14 days thereafter during the exercise of federal authority under these conditions.

Flowchart illustrating differences in application

Insurrection Act flowchart 103106 2127.png

Comparison of differences

Below is a comparison between the previous and current wording of 10 U.S.C. § 331 - 10 U.S.C. § 335 with new or revised sections and wording in bold (with the exception of paragraph and formatting notation):

Original Insurrection Act of 1807 As amended by 2007 Defense Appropriations Bill

§ 331. Federal aid for State governments

Whenever there is an insurrections in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.

No change

§ 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 or Territory 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.

No change

§ 333. Interference with State and Federal law

The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—

(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

§ 333. Major public emergencies; interference with State and Federal law

(a) USE OF ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.--

(1) The President may employ the armed forces, including the National Guard in Federal service, to--
(A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that--
(i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and
(ii) such violence results in a condition described in paragraph (2); or
(B) suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy results in a condition described in paragraph (2).
(2) A condition described in this paragraph is a condition that--
(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
(3) In any situation covered by paragraph (1)(B), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

(b) NOTICE TO CONGRESS.--

The President shall notify Congress of the determination to exercise the authority in subsection (a)(1)(A) as soon as practicable after the determination and every 14 days thereafter during the duration of the exercise of the authority.

§ 334. Proclamation to disperse

Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time.

§ 334. Proclamation to disperse

Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents or those obstructing the enforcement of the laws to disperse and retire peaceably to their abodes within a limited time.

§ 335. Guam and Virgin Islands included as "State"

For purposes of this chapter, the term "State" includes the unincorporated territories of Guam and the Virgin Islands.

No change; words "or possession" added after each instance of "State" in § 333.

Opposition

On February 7, 2007, Sen. Patrick Leahy (D-VT) and Sen. Kit Bond (R-MO) introduced legislation that would revert the Insurrection Act to its previous state.[2][3] Sen. Leahy argues that the modifications to the law make it unnecessarily easy to assert federal authority over national guard elements without the consent of governors, and that the changes removed a "useful friction" that existed between the Insurrection Act and the Posse Comitatus Act.

Senator Leahy remarked on September 19th, 2006 [4] "we certainly do not need to make it easier for Presidents to declare martial law. Invoking the Insurrection Act and using the military for law enforcement activities goes against some of the central tenets of our democracy. It creates needless tension among the various levels of government – one can easily envision governors and mayors in charge of an emergency having to constantly look over their shoulders while someone who has never visited their communities gives the orders."

No mention of Section 1076 was made in the President's statement about H.R. 5122. While this section was in effect [5], it allowed the President to declare a public emergency and station the military anywhere in America and take control of state-based National Guard units without the consent of the governor or local authorities.

Criticism in 1997 of weakening the PCA and using the federal military for domestic conditions charged that it endangered the military and the U.S. [6]:

The PCA's exceptions-in-name and exceptions-in-fact endanger the military and the United States by blurring the traditional line between military and civilian roles, undermining civilian control of the military, damaging military readiness, and providing the wrong tool for the job. Besides the current drug interdiction exceptions, the 104th Congress considered two bills to create new exceptions to the PCA. The Border Integrity Act would have created an exception to allow direct military enforcement of immigration and customs laws in border areas. The Comprehensive Antiterrorism Act would have allowed military involvement in investigations of chemical and biological weapons. [...] Increasing direct military involvement in law enforcement through border policing—an exception-in-fact—is an easy case against which to argue. Investigative support—an exception-in-name—is passive, indirect enforcement. Drug interdiction—an exception-in-name for the most part—falls between border policing and investigative support because of the extensive military involvement.

This case was also argued by the Departments of Justice and Defense in 1979 [7]:

The [PCA] expresses one of the clearest political traditions in Anglo-American history: that using military power to enforce the civilian law is harmful to both civilian and military interests. The authors of the [PCA] drew upon a melancholy history of military rule for evidence that even the best intentioned use of the Armed Forces to govern the civil population may lead to unfortunate consequences. They knew, moreover, that military involvement in civilian affairs consumed resources needed for national defense and drew the Armed Forces into political and legal quarrels that could only harm their ability to defend the country. Accordingly, they intended that the Armed Forces be used in law enforcement only in those serious cases to which the ordinary processes of civilian law were incapable of responding.

These changes were repealed in their entirety in 2008.

Repeal of amendments

The changes described above were repealed in their entirety by HR 4986: National Defense Authorization Act for Fiscal Year 2008 (full text).

All changes have been repealed, and have changed back to the original state of the Insurrection Act of 1807.

References

  1. ^ Larson, Eric V.; John E. Peters (2001) (PDF). Preparing the U.S. Army for Homeland Security: Concepts, Issues, and Options. RAND Corporation. p. 244. ISBN 0-8330-2919-3. http://www.rand.org/pubs/monograph_reports/MR1251/MR1251.AppD.pdf.  
  2. ^ Hammond, Matthew Carlton (Summer 1997). "The Posse Comitatus Act: A Principle in Need of Renewal". Washington University Law Quarterly 75 (2). http://law.wustl.edu/WULQ/75-2/752-10.html. Retrieved 2007-06-24.  
  3. ^ "H.R. 4986: National Defense Authorization Act for Fiscal Year 2008" (in English). GovTrack.us. 2008. http://www.govtrack.us/congress/bill.xpd?bill=h110-4986. Retrieved 2008-01-24.  

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