Congress later amended it following the Civil War and enactment of the Fourteenth Amendment in order to allow for the use of the military to enforce federal law against or over the objections of state authorities, but only to enforce certain constitutional rights or where the president determines that rebellion or similar conditions make it “impracticable” to enforce the law through normal means. Enacted in 1807 as an addendum to prior statutes authorizing the use of the militias, the original Insurrection Act authorized the use of the standing military in cases of foreign invasion as well as in response to internal insurrection at the request of state authorities. Paradis began the conversation with some background on the Insurrection Act, which is the most widely cited legal authority relating to the president’s authority to deploy the U.S.
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Anderson also circulated a handout ( download here) with some information on relevant legal authorities for attendees’ reference. Steve Vladeck, “ Are the Trump Administration’s Actions in Portland Legal? Are they Constitutional?,” Monkey Cage (July 25, 2020).Steve Vladeck, “ Why Were Out-of-State National Guard Units in Washington, D.C.? The Justice Department’s Troubling Explanation,” Lawfare (June 9, 2020) and.“ On the Brink with the Insurrection Act,” The Lawfare Podcast (June 2, 2020), (podcast featuring interview with Vladeck).Jintzail Hernandez, “ Insurrection Act: What You Need to Know,” Roll Call (June 8, 2020) (video featuring interview with Paradis).Anderson, “ Can Trump Use the Insurrection Act to Deploy Troops to American Streets?,” Lawfare (June 3, 2020) They circulated several recommended resources as background reading in advance of the session, including: To discuss these timely and important issues, the study group was joined by two outside experts with deep knowledge in this area: Professor Steve Vladeck of the University of Texas at Austin School of Law and Michel Paradis of Columbia Law School and the Military Commission Defense Office. But what was the legal basis for the president’s actions? And what might Congress be able to do if it believes that the president’s actions are inappropriate? In the weeks prior to the session, President Donald Trump had deployed both the military, National Guard units, and federal law enforcement personnel in response to popular protest around the country, often over objections by state and local officials.
On July 31, 2020, the Congressional Study Group on Foreign Relations and National Security convened online to discuss the president’s authority to deploy the military domestically, including through the Insurrection Act.
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