NTF issue paper: president64.doc. 6-20.
NEBRASKA TAXPAYERS FOR FREEDOM ISSUE PAPER:
PRESIDENT TRUMP SHOULD INVOKE THE INSURRECTION ACT OF 1807.
BACKGROUND. The Insurrection Act of 1807 is a federal statute (10 U.S.C. … §§ 331–335) that permits the President to deploy military forces within the U.S. in special circumstances, to suppress civil disorder, insurrection, and rebellion. I n December, 1806, President Jefferson asked Congress to pass a bill “authorising the emploiment of the land or Naval forces of the U.S. in cases of insurrection.” The 9th Congress empowered the President to utilize this law. An Act authorizing the employment of the land and naval forces of the United States, in cases of insurrections.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect. APPROVED, March 3, 1807.
Amended several times, the Act permits a president to use the military to suppress insurrections or groups obstructing the law, like rioters. The Insurrection Act gives a president the power to deploy the National Guard or the military to enforce laws in specific circumstances. It expanded upon the Militia Act of 1792, which gave the president power to command state militias in an insurrection or an invasion “from any foreign nation or Indian tribe.” The original Insurrection Act required the President to seek approval from state legislatures or governors before deploying soldiers, except in cases where a localized breakdown of authority has made the enforcement of federal laws “impracticable”; or an insurrection, domestic violence, unlawful combination, or conspiracy “hinders the execution of the laws of that 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.” Recent revisions to the Insurrection Act have added new criteria that can trigger unilateral presidential troop deployments, including: “… 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 …” that results in a breakdown of local law and order. Specifically, it authorizes the president to deploy both active-duty military and federalized National Guard units to calm situations of civil unrest in the country, if specific conditions met (Stephen Vladeck, Yes, Trump Can Invoke the Insurrection Act ).
PRECEDENT. The first time the Insurrection Act actually invoked was in 1808, when American merchant ships in the Great Lakes flouted the Jefferson trade embargo with the British. In response, Jefferson accused the rogue traders of “forming insurrections against the authority of the laws of the United States” and authorized the military to take action. In 1861, President Lincoln expanded the law to form the legal basis for waging the Civil War. Without it, he would not have had the authority to send federal troops into a state without gubernatorial permission. After the Civil War, Congress added a provision allowing the president to invoke the Act without state permission, if the state failed to protect the constitutional rights of its citizens, such as protecting private property. Simultaneously, the Insurrection Act further amended to give the president authority to enforce the 14th Amendment and the conditions of Reconstruction in the South. That authority now found in Section 253 of Title 10 of the U.S. Code, which gives the president the right to take military action within a state when “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.” Presidents have invoked this law several times, to enforce 1950s desegregation in the South, and during race riots, as when Pres. Bush I employed it during the 1992 L.A. riots. In that instance, California Governor Pete Wilson requested federal assistance to suppress the riots. But the Act also invoked without state permission in the past. President Dwight Eisenhower invoked the Act in 1957 to send the 101st Airborne Division to Little Rock, Ark., to maintain order during riots concerning the integration of a high school, against the wishes of the Arkansas governor. In 1967, President Lyndon Johnson sent the 82nd and 101st Airborne Divisions to Detroit, after deadly riots broke out between police and residents and again invoked the law in 1968 to quell protests sparked by the assassination of Martin Luther King Jr. President George H. W. Bush invoked the Act in 1989, sending troops to the U.S. Virgin Islands after looting erupted following the devastation of Hurricane Hugo. In 2006, Congress expanded the Act to authorize the President to employ the armed forces during a natural disaster, terrorist attack, epidemics, or other public health emergencies. A state request for the presence of military forces not necessary. A section of the law (§251) says “[T]he 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.” But the next section, 10 U.S. Code § 252 – Use of militia and armed forces to enforce Federal authority says: “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.”
WHY NEEDED. In New York, protests punctuated by people smashing shop windows near Rockefeller Center and breaching the doors of the Macy flagship store on 34th Street, littering the pavement with broken glass. A vehicle plowed through a group of law enforcement officers at a demonstration in Buffalo, injuring 2. Demonstrations also broke out in Philadelphia, where hundreds of rioters spilled onto a highway in the heart of the city. More than 5,600 people nationwide arrested for looting, blocking highways, and breaking curfew, according to a count by The Associated Press. Across the U.S., including NE, property owners are suffering huge financial losses caused by rioters looting, burning, and otherwise destroying their property. Shop owners in the Omaha Old Market suffered broken windows, looting, and radical graffiti sprayed onto store fronts. Downtown Lincoln merchants faced trashing, looting, and millions in arson damage. Rioting spearheaded by radicals and anarchists will not exhaust itself, if governments merely give them time and space to satisfy their progressive tempers. Passivity, conveying the message that states and governors will not enforce the laws, is only provocative. It increases the appetite for rioting, sated only after the radicals have run out of things to burn and loot. Law enforcement on its own could become inadequate to restore order once order lost. Police and prosecutorial offices sometimes do not have the resources to quell widespread seditionist violence. Consequently, other provisions of law must suffice. Fortunately, invoking this Act will not affect property insurance coverage. Based on legal concepts and given the context of the term “insurrection,” it is apparent that an exclusion applies only when there is armed conflict in an attempt to revolt and/or overthrow a government. This is different from what these protestors and rioters were attempting. Overall, their activities do not reach the level required to become considered an insurrection, nor does it appear the intent of insurance policies to exclude damage caused by insurrection applies to their actions, so regular insurance exclusions do not apply (Christopher Boggs, Does Invoking the Insurrection Act of 1807 Affect Property Coverage? 6-5-20).
DEMOCRAT OPPOSITION. Socialist Dem Sen. Richard Blumenthal (Conn.) introduced for Senate Dems a bill to limit presidential authority under the Insurrection Act. His bill would require consultation with Congress before using the Act and limit its use to 14 days, unless Congress passes a resolution to extend it. The legislation also would bring an expedited judicial review for individuals or state and local governments that believe the President has abused his authority under the Act. It would prevent the U.S. military from participating in search, seizure, or arrest unless specifically granted that authority under the law. Dems promise to sneak the bill into the National Defense Authorization Act, a massive defense bill. Dem Senators Tammy Baldwin (Wisc.), Chris Van Hollen (Md.), Patrick Leahy (Vt.), and Edward Markey (Mass.) co-sponsored legislation called the Curtailing Insurrection Act Violation of Individual Liberties Act, which would hamper the operation of the Insurrection Act. New York Gov. Andrew Cuomo told CNN that he would say “thanks, but no thanks” to the federal government offer to send in troops, despite out of control rioters in NYC causing millions in commercial damage, while Illinois Gov. J.B. Pritzker boasted, “I reject the notion that the federal government can send troops into the state of Illinois,” while uncontrolled rioters ran amok in Chicago, burning police cars and assaulting law enforcement officers. Socialist Democrat legislation, if passed, would severely curtail the President from acting swiftly to quell radical mobs.
PRESIDENT ACTS. President Trump warned that he could and would deploy active troops to locations where governors and local officials cannot or refuse to quell raging riots. “Mayors and governors must establish an overwhelming law enforcement presence until the violence has been quelled,” Trump said at the White House. “If a city or state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the U.S. military and quickly solve the problem for them.” He declared, “Liberal Governors and Mayors must get MUCH tougher or the Federal Government will step in and do what has to be done, and that includes using the unlimited power of our Military and many arrests.” Trump also said, “I am also taking swift and decisive action to protect our great capital, Washington, D.C.” to quell days of rioting there. “I am your president of law and order. As we speak, I am dispatching thousands and thousands of heavily armed soldiers, military personnel and law enforcement officers to stop the rioting, looting, vandalism, assaults, and the wanton destruction of property.” Washington, D.C. is a federal district, so the President has authority to deploy troops there if he chooses. He could invoke the Act to enforce federal law, but he first must issue a proclamation ordering those violating the law to disperse within a limited time. If they do not disperse, he then could order either the military or the National Guard to act and suppress “unlawful obstructions, combinations or assemblages against the authority of the United States.” (Congressional Research Office Report, 2006) If a governor forbids Trump from sending troops into a state, such as Democrat governors Pritzker and Cuomo, the President still could send in troops, if he argues federal law obstructed or that the state is not protecting the rights of its citizens. The President could argue that states are denying equal protection of the laws to citizens whose property is burned or stolen. “Today, I have strongly recommended to every governor to deploy the National Guard in sufficient numbers that we dominate the streets. Mayors and governors must establish an overwhelming law enforcement presence until the violence has been quelled. If a city or a state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.” Presently, however, the only actual deployment of active-duty service members confirmed by the Pentagon is a contingent of 250 members from military police and engineering units stationed in the national capital area. Together, these decisions provide a plausible legal basis for the limited set of military activities that the Trump Administration pursues so far. These existing exceptions for support for law enforcement will provide a legal basis for several of the more limited activities that the Trump Administration considers. Under such authority, the active-duty engineering and military police personnel currently staged near Washington, D.C., could deploy to advise local police, operate and maintain temporary headquarters and other facilities, or provide transportation and intelligence services. Secretary of Defense Mark Esper described American cities as “battlespaces” and called for state and local authorities to “dominate” them, terms normally associated with military operations. After his address, Trump, with an entourage that included Attorney General William Barr and daughter Ivanka Trump, walked outside the White House gates and across Lafayette Park to visit St. John Church, scorched by rioters. There, he posed for pictures outside, holding up a Bible, showing solidarity with this victim of rioting. Meanwhile, active-duty troops stationed around the country are on high alert to deploy within 24 hours.
PRESIDENTIAL JUSTIFICATION. Arkansas Sen. Tom Cotton, a staunch conservative, urged Trump to employ the 101st Airborne Division. “There is both a legal basis and a long historical precedent for using our National Guard and, if necessary, federal troops to put down domestic violence. And in fact, it is the constitutional duty of the federal government to protect the states from this kind of insurrectionist violence,” Cotton said. The President certainly justified in using this Act as follows: Where 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,” begins 10 U.S.C. § 252. Where “any insurrection, domestic violence, unlawful combination, or conspiracy” either “so hinders the execution of the laws of [a] State, and of the United States within th[at] 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,” continues 10 U.S.C. § 253(1), in which case the statute notes that states “shall be considered to have denied the equal protection of the laws secured by the Constitution.” Together, these provisions delegate a huge amount of authority to the president. Several of these provisions, especially § 252, depend on the presidential subjective evaluation of the prevailing circumstances. Every one of these provisions employs wide and undefined terms like “unlawful obstructions” and “domestic violence” that allow the president significant leeway to interpret when and how to apply the law. Given the Insurrection Act broad language and the ways in which prior presidents have used the authority without congressional approval, courts may not see a clear enough conflict between Congress and the executive to warrant intervention. As Commander in Chief of the Washington, D.C. National Guard, an authority he exercises through the Secretary of Defense, Trump can dispatch those forces to take up positions within the Capital. The city unique status also means that he can and has ordered federal troops to deploy there. The Justice Department also has deployed additional federal law enforcement personnel within the city, where it also has substantial jurisdiction. Federal law enforcement agencies, including the FBI and ICE, also have become involved. The Justice Department and state law enforcement, particularly the FBI and its Joint Terrorism Task Forces, must make it clear that lawbreakers will face arrest, serious crimes vigorously prosecuted. Article IV of the Constitution offers the president unilateral authority to put down insurrection and invasion. “Insurrection” is a violent uprising against the authority of the state. Therefore, it encompasses the concept of wide-scale domestic violence. The Insurrection Act codifies this reality by expressly empowering the president to suppress domestic violence and conspiracies. President Trump has an express constitutional obligation to protect the people of the states and our republican form of government from attack.
OTHER
OPTIONS. SEC. 1076. USE OF THE ARMED FORCES IN MAJOR PUBLIC
EMERGENCIES. (a) Use of the Armed Forces Authorized (1) IN GENERAL-
Section 333 of title 10, United States Code, amended to read as
follows: 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 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. CHAPTER
15–ENFORCEMENT OF THE LAWS TO RESTORE PUBLIC ORDER (4) CLERICAL
AMENDMENTS- Provision Authorized- In any situation in which the
President determines to exercise the authority in section
333(a)(1)(A) of this title, the President may direct the Secretary of
Defense to provide supplies, services, and equipment to persons
affected by the situation. The letter of the law states that in
paragraph 251 that states may request federal military aid, but
paragraphs 252 and 253 give the president additional authority to
intervene unilaterally. The law gives President Trump the authority
to deploy the U.S, military to quash riots, “domestic violence,”
or to enforce federal laws.
TO DEPORT ILLEGAL ALIENS.
The Insurrection Act actually permits President Trump to deport
illegal aliens by calling out the military (Stephen Vladeck, Yes,
Trump Can Invoke the Insurrection Act). He long has pledged to
overhaul our immigration system and seriously considers using this
Act, as he already sent troops to our southern border last October to
stem the hordes of illegals trying to enter the U.S.
WORSE TO FOLLOW. Law enforcement agencies across the country are warning of huge mob attacks and rioting during the August GOP Convention that will re-nominate Pres. Trump. Peaking at Election Day, radical leftists and their thug followers plan to continue to riot and destroy property and livelihoods in order to intimidate people from voting and defeat Trump at the polls. Then they can continue to muscle their way into national power.
TAKE ACTION NOW. Many Americans, disgusted with gutless politicians like Lincoln Mayor Baird who have handcuffed the police and sided with the looters, welcome Trump’s hard “I am the president of law and order” line. Immediately call the White House hotline at 202-456-1111 and voice your support for Pres. Trump invoking the Insurrection Act to protect lawful citizens and their property in Nebraska. Then call or email your representative and 2 senators to support this presidential decision. We must not allow bands of radical thugs to wantonly destroy our property and livelihoods in NE, intimidate conservative citizen constitutional rights, and steal the election. We must stand by our President to restore and retain law and order in our state and nation. Email netaxpayers@gmail.com for Capitol Hill contact information and join our NTF President Watch Project.
Research, documentation, and analysis for this issue paper done by Nebraska Taxpayers for Freedom. This material copyrighted by Nebraska Taxpayers for Freedom, with express prior permission granted for its use by other groups in the NE Conservative Coalition Network. 6-20. C