False social media posts swirled late Sunday that President Donald Trump in the wake of the U.S. Capitol riots had invoked the Insurrection Act, a law that allows the president to deploy the military to quell rebellion.
Tweets sharing images of military personnel in Washington continued to spread Monday morning and became a trending term on Twitter. However, Trump has not invoked the law.
The law, which has existed in various forms since the time of George Washington and in its current state since the Civil War, allows the president to dispatch the military or federalize the National Guard in states that are unable to put down an insurrection or are defying federal law.
It was last invoked in 1992 by George H.W. Bush during the unrest in Los Angeles after the acquittal of police officers who beat Rodney King.
What is the Insurrection Act?
The Insurrection Act gives the president authority to call on military and National Guard forces to suppress an insurrection if a state requests it, if there is an insurrection that makes it impossible to enforce federal law, or if there is an insurrection or domestic violence that deprives others of their Constitutional rights.
The Act also requires the president to issue a proclamation demanding those participating in the insurrection disperse.
William Banks, a Syracuse University College of Law Board of Advisors Distinguished Professor, said that when thinking about the Insurrection Act, it’s important to remember one of the most basic principles of the United States’ founding: that the military not be involved in civilian affairs.
“The Insurrection Act lays into U.S. law an exception to that background principle,” Banks said.
In most cases, a state would want to rely on National Guard troops in situations of unrest. The Insurrection Act is generally reserved for when “things are really bad,” Banks said.
How does it differ from martial law?
The Insurrection Act is a law while “martial law” is a concept that doesn’t have a legal definition in the U.S. “It’s not enshrined anywhere,” said Thaddeus Hoffmeister, a law professor at the University of Dayton.
Generally, martial law means that the military takes over civilian control of the government, whereas the Insurrection Act applies to specific instances of rebellion or refusal to uphold the law and requires a state’s National Guard or the U.S. military to intervene.
“Martial law is essentially the absence of law,” Banks added. It would apply to situations where the rule of law has broken down so much that law is no longer in place. “It’s really an alien concept” in the U.S., he said.
How would the Insurrection Act have applied to the Capitol riot?
A deadly mob that Trump incited stormed the Capitol last Wednesday, breaking in, attacking Capitol Police officers and trashing offices as some stormed onto the Senate floor. Congress was meeting to certify the Electoral College vote and President-elect Joe Biden’s win. Rioters chanted “Stop the Steal,” falsely claiming Trump had won the election.
BuzzFeed News reported Sunday that local lawmakers in the district had received a briefing from the district’s attorney general’s office in the days before the riots about the implications if Trump were to invoke the Insurrection Act and how it would affect the local police department.
“We had every reason to suspect there would be some sort of trouble,” Phil Mendelson, chairman of the district council told BuzzFeed News, adding “our concern was that it would be fomented by the president who would say: ‘Look, there’s rioting and chaos – we need to take over the police department and bring in the National Guard.’”
Lindsey Walton, director of communications for Mendelson, confirmed to USA TODAY that the memo was presented to the council. “The Chairman indicated the memo was mundane and more of a cautionary thing as opposed to preparatory,” she added.
Hoffmeister and Banks said, however, there was no need for Trump to invoke the Insurrection Act on Jan. 6. given the federal government’s control of the district’s National Guard and federal law enforcement. Invoking the Act would have further allowed Trump to send active-duty military to the district when he already in effect had control over its National Guard and federal police.
“They had more than enough forces to stop that, but they have to call them up,” Hoffmeister said.
Additionally, nearby governors and the district’s Mayor Muriel Bowser sought more National Guard support that was slowed by the federal government’s response.
Maryland Gov. Larry Hogan said Sunday his National Guard troops were ready to assist but he could not get approval to cross over into the district. The Department of Defense’s approval is required for another state’s National Guard to be deployed in the district.
“Our guard mobilized and was ready, but we couldn’t actually cross over the border into D.C. without the OK, and that was quite some time. We kept running it up the flagpole – our generals talking to the National Guard generals,” Hogan told CNN’s “State of the Union” program.
The Washington Post reported that Virginia Gov. Ralph Northam was also prepared to send his state’s National Guard. Meanwhile, former Capitol Police Chief Steven Sund also said he requested that the National Guard be placed on standby in the days before the riot but that House and Senate security officials turned him down.
Invocations of the Insurrection Act in the past have occurred when a governor allows for violence or infringement of rights to occur or can’t control the situation, Hoffmeister said.
As Hoffmeister put it, usually someone was “just sitting back and watching,” but on Jan. 6, “It was the president who was sitting back and watching.”
“What’s so dramatically different now of course is that the person who would decide to utilize the Insurrection Act is the very guy who is precipitating the violence,” Banks added.
Could Trump still invoke the Insurrection Act?
While the law is broad and gives the president discretion in its use, Banks said there are certain conditions that would need to be met before a state’s National Guard or active duty military were deployed under the act.
If Trump were plotting to invoke the act in some effort to prevent the transition of power to Biden, he’d have to declare it, as part of the provision in the act requiring essentially a public cease and desist order for the insurrectionists, Banks said.
“He couldn’t do this surreptitiously. He would have to make a public proclamation and that would expose his objectives and partisan rationale,” he said.
Furthermore, it’s unlikely that active-duty military would follow through with the order in such a case where there isn’t violence or insurrection, Banks said. “There’s no insurrection,” Hoffmeister added. “They need to go over that first hurdle and actually have an insurrection.”
“When you invoke the Insurrection Act, it doesn’t necessarily mean that everything is going to grind to a halt. It doesn’t mean that the inauguration doesn’t go forward,” Hoffmeister said.
When has the Insurrection Act been invoked?
The Insurrection Act has been invoked throughout U.S. history for a variety of purposes.
Abraham Lincoln invoked it in Southern states during the Civil War. Dwight Eisenhower used it to protect Black students desegregating a school in Little Rock, Arkansas. And Lyndon B. Johnson sent troops to break up riots in U.S. cities in the late 1960s.
Hoffmeister said some of its most powerful uses have been to enforce desegregation laws in the South. According to Banks, Bush received criticism after he invoked it in California in the 1990s.
The potential for Trump’s invocation of the act also came up amid the unrest last summer during racial justice protests. Trump never invoked it, though. Then-Defense Secretary Mark Esper said he opposed using the U.S. military to quiet the domestic unrest after Trump had threatened to deploy federal troops to “dominate the streets.”
Contributing: William Cummings and John Bacon
Follow USA TODAY’s Ryan Miller on Twitter @RyanW_Miller