Trump Could Use the 1807 Insurrection Act to Send Military to Riots

Antifa in Portland
Scott Olson/Getty

President Donald Trump on Monday suggested he would use federal troops to quell the violent and, in some cases, deadly riots and looting that have ravaged cities throughout the nation for the past week.

The riots evolved from protests sparked by the death of George Floyd, an unarmed black man who died while in police custody in Minneapolis on May 25.

“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 United States military and quickly solve the problem for them,” Trump said in an address at the White House on Monday.

The president is legally able to send military forces to states if he invokes the 1807 Insurrection Act. The act allows troops to be deployed to states if states cannot control or are abetting the breaking of the law, even if this defies the wishes of the state’s governor.

Under the Constitution, state governors are granted the authority to generally maintain order within state borders. The Posse Comitatus Act, which largely prohibits the federal military from participating in domestic law enforcement, reflects this principle.

An exception to the Posse Comitatus Act, the Insurrection Act, permits the president to send in U.S. military forces to suppress a domestic insurrection that has hindered the normal enforcement of U.S. law.

The Insurrection Act has been used on dozens of occasions throughout U.S. history, according to a report by the Congressional Research Service. However, since the 1960s civil rights movement, the invocation of the act has become “exceedingly rare.”

The act was last used in 1992 when the acquittal of four Los Angeles police officers on charges of beating black motorist Rodney King caused deadly riots.

In 2011, former President Barack Obama amended the Insurrection Act to allow for the indefinite detention of U.S. citizens if they are actively engaged or associated with terror groups such as Al Qaeda, the Taliban, or “forces that are engaged in hostilities against the United States.”

On Sunday, Trump announced plans to officially designate the violent leftist group Antifa a terror group. The group has played an integral role in the violent protests and riots over the past week.

“The United States of America will be designating ANTIFA as a Terrorist Organization,” the president wrote on Twitter.

There is a legal argument to be made that the Posse Comitatus Act does not apply to terrorist organizations. In 2009, the Bush administration considered using the military on domestic soil to arrest men suspected of plotting with the terror group Al Qaeda.

If Antifa is declared a “terrorist organization,” as Trump suggested it might be on Sunday, then this could possibly allow the president to use the military to suppress violent members of the riots.

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