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A Call For Congress to Clarify the Insurrection and Posse Comitatus Acts [1]

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Date: 2025-02

REPORT

THE CITY BAR CALLS UPON CONGRESS TO CLARIFY THE INSURRECTION AND POSSE COMITATUS ACTS

The New York City Bar Association[1] (the “City Bar”) is gravely concerned about two laws that carry the potential for unprecedented misuse of the United States military: the Insurrection Act of 1807[2] and the Posse Comitatus Act of 1878.[3] Absent a clear need either to assist state and local authorities in quelling major, violent, civil unrest, or to assure the protection of constitutional rights, using the military in immigration enforcement would be inappropriate, contrary to its customary use, and place servicemembers in roles in which they lack the necessary training and experience. To prevent the Executive Branch from abusing the power granted by these vague and outdated statutes, we call upon Congress to reform these laws at its earliest possible opportunity, and we urge the incoming Trump administration to refrain from such unprecedented misapplication of these statutes.

As early as June 2020, when state governors faced turbulent demonstrations related to the Black Lives Matter movement and other issues, then-President Donald Trump threatened to deploy the military to “solve the problem,” suggesting that U.S. troops would be used to confront, control, and possibly detain U.S. citizens. And in the aftermath of the November 2020 election, in response to concerns over potential post-election civil unrest should President Trump refuse to step down, Jeffrey Clark (at the time, the acting head of the Justice Department’s Civil Division and President Trump’s expected pick for Attorney General) stated “That’s why there’s an Insurrection Act.”[4] More recently, President-elect Trump has indicated that he would invoke the Insurrection Act to use National Guardsmen and federal troops to remove non-citizens who lack legal status from the United States. And in October, 2024, President Trump threatened to use the U.S. military to counter unspecified dangers posed by supposed domestic opponents, labeling them the “enemy from within.”[5]

As the Commander in Chief, the President wields a tremendous amount of power. But like all power in a democracy, it is not unlimited. The New York City Bar Association urges the Executive Branch, including the President and senior military leaders, to respect those limits, thereby preventing the abuse of power and the military’s misuse, pending clarifications by Congress.

I. THE POSSE COMITATUS ACT

The Posse Comitatus Act was passed in 1878 in the aftermath of Reconstruction. The Act was Congress’ response to the excessive use of the military in a law enforcement role. Specifically, federal troops were used to counter paramilitary groups in southern states, who routinely used intimidation and violence to suppress African American political power during Reconstruction. In response, Southern Senators pushed to prohibit the use of federal troops to impose control in the South. Bipartisan support for what would become the Posse Comitatus Act was achieved in 1877 after President Hayes deployed federal troops to end the Great Railroad Strike – a 52-day period of civil unrest that spanned five states, involved over 100,000 workers, and resulted in an estimated 100 people being killed.

That bipartisan compromise created a one-sentence criminal statute that reads as follows:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.[6]

Put simply, the Posse Comitatus Act makes it a crime for federal military personnel to perform civilian law enforcement functions unless expressly authorized by statute or the Constitution. It does not, however, preclude state National Guard forces from acting in a law enforcement capacity at the command of a governor or at the request from an adjacent state’s governor. Additionally, under Section 502(f) of Title 32 of the United States Code, the National Guard can carry out federal missions at the President’s direction, while remaining under state control.[7] The protections of the Posse Comitatus Act can be nullified should the President invoke the Insurrection Act.

II. THE INSURRECTION ACT

The Insurrection Act of 1807 states, in part:

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.[8]

Essentially, the Insurrection Act grants the President emergency powers to deploy U.S. troops domestically against U.S. citizens. It is an exception to the Posse Comitatus Act, which generally prohibits the Executive from using the United States military to enforce state and local laws. Under the statutory scheme, however, such power should be reserved for only those scenarios where local and state authorities are unable to maintain law and order; and not, for example, to carry out an administration’s immigration policy.

The original Insurrection Act responded to domestic unrest during George Washington’s administration and the routing of the regular army by Native Americans on what was then the frontier. The Act was later amended twice in response to the Civil War and the failure of southern law enforcement to protect new Black citizens during Reconstruction. Since then, presidents have invoked the Act sparingly – only 28 times – mainly to assist state officials facing labor unrest early in the last century and to enforce federal court-ordered desegregation in the 1950s and ’60s. In addition, modern statutory developments have rendered much of the Act unnecessary: since World War II, under the National Emergencies Act of 1976 and other statutes, presidents have declared and responded to more than 60 national emergencies without ever having to rely upon the Insurrection Act.

III. CALL FOR EXECUTIVE RESTRAINT AND CONGRESSIONAL CLARIFICATION

Using the Insurrection Act to override the protections of the Posse Comitatus Act and deploy U.S. troops within the United States to investigate, detain, and remove illegal immigrants would be an unprecedented use of presidential power and misuse of the military. Such action runs contrary to the Insurrection Act’s plain language. While there are serious issues with the current immigration policy that need to be addressed, those issues cannot be equated with “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States,” that are required to invoke the Insurrection Act. Nor can the incoming administration show that illegal immigration has made “it impracticable to enforce the laws of the United States” or that use of the military is “necessary” to enforce its planned immigration policy.

The Insurrection Act was last invoked in 1992 during the Los Angeles riots.[9] Prior to that, it had been invoked only three times since 1968, each instance was in response to sudden instances of major civil unrest, riots, looting, arson, and violence, where there were serious threats to life and property.[10] Deploying the military to assist with detention and deportation of undocumented migrants would be an operation with no defined end date that could last months or even years. Additionally, such action would usurp the civil functions given by Congress to agencies in the Department of Homeland Security, i.e., United States Immigration and Customs Enforcement and United States Customs and Border Protection.[11]

There are also practical considerations that weigh in favor of not using the military for mass deportations.

First, deploying the military or National Guard to the border or into cities with high immigrant populations will decrease the military’s readiness to face more concerning national security threats overseas. In June 2024, then-chief of the National Guard, U.S. Army General Daniel Hokanson, testified before Congress and criticized using the National Guard for such a law enforcement mission, asserting:

[T]here is no military training value for what we do [at the border]. This is a law enforcement mission under the Department of Homeland Security. . . . They’re there doing mission sets that are not directly applicable to their military skill set. And so, it increases their personal operational tempo. And that time I think would be better utilized building readiness to deter our adversaries.[12]

Second, except for specialized units like military police, the overwhelming majority of military forces are not trained to execute a law enforcement mission.[13] Rather, the bulk of U.S. military forces are trained to engage in combat against foreign militaries or combatants in foreign lands where the protections of the United States Constitution, namely the Fourth and Fifth Amendments, do not apply. They do not have the training of law enforcement personnel with respect to the preservation of life and limb while enforcing the law. Servicemembers, who take an oath to defend their country “against all enemies,” would be placed in the precarious position of enforcing federal law against non-enemies without the months of training that local and federal law enforcement officers receive or sufficient experience in such a role.

And third, using the military to carry out mass roundups and deportations runs contrary to this country’s longstanding tradition of keeping the military out of domestic affairs. The Insurrection Act was never intended for those purposes. Troop deployments in our cities or at the border are an attack on the freedoms Americans enjoy and moves us closer towards being a police state where those freedoms are threatened.[14]

The threat posed by “America’s most dangerous law” has been ignored for far too long.[15] While the Posse Comitatus and Insurrection Acts’ spirit and intent should preclude the President from using the military to carry out mass deportations or overreacting to civil unrest, the City Bar supports the recent efforts by the Brennan Center, the American Law Institute, and many other prominent organizations, commentators, and legislators, who have called upon Congress to strengthen the Posse Comitatus Act and clarify the Insurrection Act.[16]

Notably, Congress should act to prevent Executive misuse of the Insurrection Act while at the same time preserving Executive authority to call upon the Insurrection Act when truly necessary. To do that, Congress must:

Clarify the criteria for the Insurrection Act’s invocation. The current vague and archaic language leaves unclear what constitutes an Act-worthy emergency. Therefore, Congress should limit the Act’s invocation to situations such as where state and local governments have been overwhelmed by unrest and are clearly unable or unwilling to enforce local laws or protect its constituents’ constitutional rights.

Limit the effective duration of the Act once invoked. Congress should specify that the Executive has a finite number of days (30-45 days, for example) to exercise the authority provided by the Act, after which the authority automatically terminates (with a provision permitting re-invocation or extension if necessary). In addition, Congress should also enact an emergency bicameral mechanism whereby it can terminate the Executive’s power before the deadline, where it sees fit.

Provide streamlined judicial review. Such a provision would permit an affected party to challenge the Executive’s authority in federal court and obtain review in the manner of an order to show cause for injunctive relief.

Remove the Section 502(f) loophole to the Posse Comitatus Act by extending its application to cover National Guard mobilizations when the President requests their use for federal missions.

Impose an exclusionary rule that prevents the use of evidence obtained in violation of the Posse Comitatus Act, and allow individuals harmed by its violations to sue for civil damages. Military leadership and their civilian counterparts are more likely to comply with the law if there is a risk that evidence could be thrown out or they could be subjected to lawsuits.

The potential dangers posed by the Insurrection Act seem patent. Military troops are not trained for, lack experience with, and are ill-equipped to engage in civilian law enforcement, and senior military leadership has suggested it is reluctant to take on that mission. More importantly, every Executive invocation of the Insurrection Act promises to erode the proscriptive line drawn by history between the United States military and the civilian public. Without changes, the Insurrection Act presents a future president with a potentially dangerous weapon, one we have already seen threatened with misuse.[17]

Thus, the New York City Bar Association calls upon the incoming Trump Administration to refrain from invoking the Insurrection Act to use the military to achieve its immigration enforcement goals or to preserve the social order, absent a clear need either to assist state and local authorities in quelling major, violent civil unrest or to assure the protection of constitutional rights. The City Bar further calls upon Congress to clarify the Posse Comitatus and Insurrection Acts at its earliest possible opportunity to prevent Executive misuse of the Insurrection Act while preserving the Executive’s authority to invoke the Act when truly necessary.

New York City Bar Association

Muhammad U. Faridi, President

Task Force on the Rule of Law

Marcy L. Kahn, Chair

Alan Rothstein, Vice Chair

Military and Veterans Affairs Committee

Daniel Lewis, Chair

January 2025

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[1] Url: https://www.nycbar.org/reports/a-call-for-congress-to-clarify-the-insurrection-and-posse-comitatus-acts/

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