What Is the Insurrection Act?

The use of military forces to address volatile situations normally under the purview of law enforcement within the United States is a very rare occurrence, and for good reason. Troops are legally forbidden to be involved in domestic law enforcement affairs without prior congressional authorization.

One loophole does exist. It’s the Insurrection Act, and it empowers the president to dispatch soldiers to combat an insurrection, civil disturbance, natural disaster, or terrorist attack on American soil. But actually invoking the Insurrection Act is no simple matter.

The Act was introduced in 1807 and gives the president the authority to direct American troops to intervene in state-level civil unrest in the event local authorities are unable to control the disturbance. (It was amended in 2006 following Hurricane Katrina to include disasters and terrorism.) It’s used sparingly, particularly as modern police forces have become more militarized. The last time the Act was invoked was in 1992, when riots following the acquittal of four police officers tried in the beating of Rodney King consumed Los Angeles.

At the time, the California governor requested military forces—and normally, the president would activate federal troops at the behest of a governor or state legislature. According to the Los Angeles Times, one exception for dispatching soldiers without state approval is an indication that states are violating civil rights, as was the case for several U.S. presidents (Dwight Eisenhower, John F. Kennedy, and Lyndon B. Johnson) who used military forces to back desegregation in Southern states. Alternately, the president would have to believe such events are interfering with a state’s ability to enforce their laws.

Put simply: Military forces are typically sent at the request of the state, but a request isn’t necessary if the president believes troops are needed to restore order.

When states believe local police are being overwhelmed, their preference is to use the National Guard, which is authorized to act as law enforcement on domestic soil.

If the Act is used, the president would first have to issue a proclamation ordering those involved in any disturbance to disperse. If that fails, the president would issue an executive order to activate the military. States would then likely argue against the intrusion of such forces. It is not clear, however, that they would have the legal justification to prevent such an action if the president calls for it.