President Trump Doesn’t Need to Invoke the Insurrection Act – He Already Has

Summary

DHS’s ability to carry out truly large-scale removals of deportable and inadmissible aliens on its own may be doubted, through no fault of its own. The U.S. military could provide a key assist in DHS’s monumental task. Federalized members of the National Guard and active duty members of the Armed Forces can help track down removable aliens. They can help detain them. And they can help remove them.

• President Trump, in response to the anti-ICE riots taking place in Los Angeles and elsewhere, has declared that “I hereby call into Federal service members and units of the National Guard under 10 U.S.C. 12406 to temporarily protect ICE and other United States Government personnel who are performing Federal functions, including the enforcement of Federal law.”

  Section 12406 provides that:

  Whenever … there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or … the President is unable with the regular forces to execute the laws of the United States … the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to … suppress the rebellion, or execute those laws.

• Section 12406 is just as much an “Insurrection Act” as are the statutory provisions — 10 U.S.C. §§ 252 and 253 — most commonly associated with that term. Section 12406’s lineage to the first formulation of the Insurrection Act in 1792 is just as secure as are those of the other two provisions. Thus, by invoking § 12406, President Trump has already invoked the Insurrection Act.
• While President Trump has not yet declared that he will utilize § 12406 to allow the National Guard to engage in direct immigration law enforcement roles, he certainly can, as the provision contains the magic words needed for him to do so in full compliance with the Posse Comitatus Act.

Mass Removals, Posse Comitatus, and the Insurrection Act

I have written that DHS’s ability to carry out truly large-scale removals of deportable and inadmissible aliens on its own may be doubted, through no fault of its own. Among the obstacles, while over 1.4 million aliens who already have final removal orders are at large in our communities, as are over 6.2 million other aliens in removal proceedings, DHS’s Office of the Inspector General has concluded that “DHS has limited ability to track [the] post-release addresses accurately and effectively” of the millions of aliens apprehended and then released by the Biden administration. To meet the challenge, ICE’s Enforcement and Removal Operations has only about 6,000 law enforcement personnel nationwide.

I have argued that the U.S. military could provide a key assist in DHS’s monumental task. Federalized members of the National Guard and active duty members of the Armed Forces can help track down removable aliens. They can help detain them. And they can help remove them.

But how to surmount the Posse Comitatus Act, which provides that:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space 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.

The key phrase is “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress”. Congress has provided in the Insurrection Act, enacted in its first formulation in 1792, such cases and circumstances, as the authors of the Posse Comitatus Act, enacted in 1878, well understood.

I have written that President Trump would have ample legal justification to allow for military assistance with large-scale removal efforts by recourse to the Insurrection Act. After all, in In re Debs in 1895, the Supreme Court ruled that “under the Constitution, power over … transportation of the mails is vested in the national government”, and thus “that the national government may prevent any unlawful and forcible interference therewith”, with the army and the militia “at the service of the Nation to compel obedience to its laws”. The Constitution also vests Congress with plenary power over immigration and requires the president to take care that the laws be faithfully executed.

Enforcement of the immigration laws would seemingly rise to the same level of national importance as delivery of the mail.

Anti-ICE Riots and President Trump’s Response

The despicable anti-ICE (U.S. Immigration and Customs Enforcement) riots began on June 6, as my colleague Andrew Arthur described. The following day, President Trump declared that:

Numerous incidents of violence and disorder have recently occurred and threaten to continue in response to the enforcement of Federal law by … ICE … personnel who are performing Federal functions and supporting the faithful execution of Federal immigration laws. In addition, violent protests threaten the security of and significant damage to Federal immigration detention facilities and other Federal property. To the extent that protests or acts of violence directly inhibit the execution of the laws, they constitute a form of rebellion against the authority of the Government of the United States.

President Trump issued a presidential memoranda, “Department of Defense Security for the Protection of Department of Homeland Security Functions”, providing that:

In light of these incidents and credible threats of continued violence, by the authority vested in me as President … I hereby call into Federal service members and units of the National Guard under 10 U.S.C. 12406 to temporarily protect ICE and other United States Government personnel who are performing Federal functions, including the enforcement of Federal law, and to protect Federal property, at locations where protests against these functions are occurring or are likely to occur. … The members and units of the National Guard called into Federal service shall be at least 2,000 National Guard personnel and the duration of duty shall be for 60 days or at the discretion of the Secretary of Defense. In addition, the Secretary of Defense may employ any other members of the regular Armed Forces as necessary to augment and support the protection of Federal functions and property in any number determined appropriate in his discretion.

Will the Real Insurrection Act Please Stand Up?

Wait, you say, 10 U.S.C. § 12406 is not the Insurrection Act! And you say that, in any event, the provision is not being used so that members of the National Guard and the Armed Forces can engage in immigration law enforcement — only so that they can protect those ICE officers who are! And you say further that the Insurrection Act is located at 10 U.S.C. §§ 251-55, not § 12406!

You may have read Steve Vladeck’s post on Substack, in which Vladeck, professor of law at the Georgetown University Law Center, stated that:

• Trump has not (yet) invoked the Insurrection Act, which means that the 2000 additional troops that will soon be brought to bear will not be allowed to engage in ordinary law enforcement activities without violating … the Posse Comitatus Act. All that these troops will be able to do is provide a form of force protection and other logistical support for ICE personnel.

• [N]othing that the President[’s memo] did … would … authorize these federalized National Guard troops to conduct their own immigration raids; make their own immigration arrests … .

  [The] memorandum federalizes 2000 California National Guard troops for the sole purpose of protecting the relevant DHS personnel against attacks. … [B]y itself, this is not the mass deployment of troops into U.S. cities that had been rumored for some time.

  [T]here really isn’t much that these federalized National Guard troops will be able to do. [Emphasis in original.]

Well, a little legislative history will show that you, and Vladeck, are wrong. U.S. Rep. Ariosto Wiley (D-Ala.) may have had you and Vladeck in mind when he stated on the House floor on June 30, 1902 that:

There seems to be much confusion and misunderstanding on the part of the public generally, even among some of our best informed fellow-citizens, as to the right and authority of the President at any time, in any contingency, or for any purpose to avail himself of the services of the militia forces of the different States when the peace of the country has been broken or disturbed or an invasion is threatened.

First, what does the federal law commonly referred to as the Insurrection Act state that is relevant for our purposes? 10 U.S.C. § 252 provides that:

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.

And 10 U.S.C. § 253 provides in part that:

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 … opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

Over the past 233 years, presidents have relied on the current and past formulations of these provisions to deal with 30 crises involving insurrection and domestic violence, in order to safeguard the nation, protect the lives of both citizens and noncitizens, allow the federal government to carry out its functions, safeguard the rights of freed slaves during post-Civil War Reconstruction and their descendants during the 20th Century’s civil rights struggles, and safeguard interstate commerce.

But what about 10 U.S.C. § 12406, which provides in part that:

Whenever—

1. the United States … is invaded or is in danger of invasion by a foreign nation;
2. there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
3. the President is unable with the regular forces to execute the laws of the United States;

the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws.

I should note that, as Sean Zeigler, Alexandra Evans, Gian Gentile, and Badreddine Ahtchi explained in The Evolution of U.S. Military Policy from the Constitution to the Present, Volume II: The Formative Years for U.S. Military Policy, 1898–1940 (published by the RAND Corporation), “the Dick Act divided the state militias into two categories: the organized militia to be known as the National Guard of the states, and the Reserve Militia comprising all individuals in the constitutionally defined militia, but not in the organized militia”.

Vladek contends that “As the brevity of [§ 12406] should make clear, this provision provides no additional substantive authority that the federal government did not already possess. … [B]ecause of the Posse Comitatus Act … there is plenty that these troops cannot legally do that the ICE officers can.” (Emphasis in original.)

But Vladek, surely one of our best-informed fellow-citizens, is incorrect. Section 12406 was in fact § 4 what is popularly known as the Militia Act of 1903 (to “promote the efficiency of the militia”) or as the Dick Act (named after its author, Chairman of the House Committee on Militia Charles Dick (R-Ohio)), which passed the U.S. House of Representatives by a vote of 180-28 and the U.S. Senate unanimously.

How did the Militia Act come to be? Zeigler et al. wrote that:

[Secretary of War Elihu] Root recognized that militia reform would be a critical step in building a more powerful and reliable Army. To this end, he revived proposals first circulated by other[s] … such as George Washington, Henry Knox, and Friedrich Wilhelm von Steuben, who after the Revolutionary War sought to standardize training requirements across the state militias. Two obstacles quickly emerged. First, Root recognized that Guardsmen’s part-time status required that training programs be sufficiently flexible to accommodate civilian work rhythms and limitations … . Second, Root wanted methods to compel states to build and maintain high-quality militia outfits, which would require substantial increases in federal funding.

Then, as they explained, “In 1903, Congress codified Root’s proposals in a law.” That law was the Dick Act. It represented “a turning point in U.S. military policy”, for “After over a century of congressional inactivity, the legislation replaced the long-obsolete 1792 Militia Act and began a period of substantial reform.”

But as Zeigler et al. wrote, the Dick Act “also spelled out when and how the President might federalize the militia”. Further:

• Significantly, the Dick Act unambiguously tied the Guard to the Constitution’s militia clauses and referred to federalization in terms of the President “calling forth” the militias for the sake of domestic duties — more specifically, quelling rebellion, repelling invasion, and enforcing federal laws. … National Guard units, when in federal service, remained militias and were thus constrained by the legal limits associated with them.

• [T]he Dick Act recognized the National Guard as the organized militia identified in the militia clauses, which explicitly limited the militia’s purpose when federalized to suppressing internal insurrections, repelling invasions, and enforcing the laws of the United States.

Secretary Root enthusiastically supported the bill, writing to Chairman Dick on March 18, 1902, that it “makes reasonable and proper provision … for [the militia’s] special employment by the General Government … in time of war or public danger, such use being made subject of special statutory limitations with respect to time, place, and occasion of its employment”.¹

The Dick Act specifically allowed the president to “call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to … execute th[e] laws” of the United States. Those are the magic words President Trump needs to utilize the National Guard to engage in direct immigration law enforcement roles in full compliance with the Posse Comitatus Act.

On June 30, 1902, during House floor debate on the bill (H.R. 11654) that was to be enacted as the Militia Act, Rep. Wiley reiterated this point:

[The bill] is the most intelligent and satisfactory solution of the question of supporting the State troops and rendering them serviceable to the National Government in the event of war, or for executing the laws of the Union, suppressing insurrections, repelling invasion, or making preparation to resist threatened invasion, which has ever yet been presented in legislative form, so far as my experience and observation extend. [Emphasis added.]

Wiley noted that:

• The constitution of every State in the Union requires the governor to see to it that the public peace is preserved. The militia conserves that laudable purpose.

  [I]f need be they are willing to lay down their lives in order to maintain the honor, preserve the peace, and enforce the laws not only of a particular Commonweath, but of the nation as well; to take the mob by the throat and to protect, at all hazards, life, liberty, and property. [Emphasis added throughout.]

• [T]he National Guard will be needed for home purposes — to preserve the public peace, to enforce order, and to execute the laws of the land.

In fact, § 12406’s origins go back a lot further than 1903’s Militia Act. As the House Committee on Militias report on H.R. 11654 noted, the provision replaced “with no material change in revision” § 1642 of title XVI of the Revised Statutes of the United States passed at the first session of the 43rd Congress, 1873-1874.² Indeed, the provision’s origins go back a lot further than the Revised Statutes. As an annotation to § 1642 in the Revised Statutes notes, its origins go all the way back to the Act of February 28, 1795 (1795 Act) (“provid[ing] for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions”), which itself modified the Act of May 2, 1792 (1792 Act). The 1792 Act was the foundation stone for the Insurrection Act, providing in part that:

[W]henever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President … by an associate justice or the district judge, it shall be lawful for the President … to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session. [Emphasis added.]

In the 1795 Act, Congress loosened the 1792 Act’s restraints on the president’s use of these powers. Vladeck has written in the Yale Law Journal that:

[W]hereas … the 1792 Act envisioned a multistage process … in which the President first had to receive judicial acknowledgment of a crisis requiring the militia, then could issue a proclamation ordering the insurgents to disperse, and then could call out the militia only after such a proclamation had gone unheeded … the 1795 Act authorized the President to act decisively, expeditiously, and, of most significance, unilaterally. Whereas the Second Congress had intended the delegation of such broad authority to sunset after three years and had required the intervention of a federal judge, the Third Congress made the delegation permanent and expanded the President’s authority … removing the requirement of an antecedent court order and the bar on the use of out-of-state militiamen and changing the timing of the dispersal proclamation requirement.

Section 12406’s lineage to the 1792 Act is just as secure as are the lineages of §§ 252 and 253. They are simply two branches of the same tree. Each provision has the same right to be considered an “Insurrection Act”.

So, we have § 252, stating that:

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. [Emphasis added.]

And § 253, stating that:

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 … opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws. [Emphasis added.]

And we have § 12406, stating that:

Whenever … there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or … the President is unable with the regular forces to execute the laws of the United States … the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to … suppress the rebellion, or execute those laws. [Emphasis added.]

It is crystal clear that all three provisions, each a part of the “Insurrection Act”, allow the president to deploy members of the military to engage in law enforcement roles to enforce/execute our nation’s immigration laws (though, of course, § 12406 deals only with the militia/the National Guard).

Conclusion

It is true that President Trump’s memoranda stated that “the deployed military personnel may perform those military protective activities that the Secretary of Defense determines are reasonably necessary to ensure the protection and safety of Federal personnel and property”.

President Trump did not state that the deployed military personnel can perform law enforcement roles to execute the immigration laws. But he certainly can in his next § 12406 memorandum.

End Notes

¹ H.R. Rept. 57-1094 at 2 (1902).

² Id. at 22.