President Donald Trump pledged Monday to use the Insurrection Act of 1807 to deploy United States armed forces against protesters who have taken to the streets after the killing of George Floyd and the long history of racialized police violence against African Americans.
The way in which Trump made this announcement -- against the backdrop of tear gas and militaristic action taken against protesters on his doorstep exercising their First Amendment rights -- is itself a manifestation of unprecedented use of presidential power.
From a historical perspective, the act, which aimed to provide the mechanism for the federal government to quell an insurrection, is (along with its later amendments) one of the earliest and most significant accumulations of presidential power, dating back to the first years of the republic. But especially since the end of the Civil War, presidents have largely avoided invoking the act.
Since the 19th century, the United States has faced its fair share of crises. History teaches that presidents have treated the Insurrection Act with the greatest restraint, perhaps in keeping with what the late Justice Antonin Scalia described in Hamdi v. Rumsfeld as, "the Founders' general mistrust of military power permanently at the Executive's disposal."
Of course, if we have learned anything in the past few years, it is that President Trump does not consider himself beholden to most traditions of presidential behavior. If he does array federal military forces against the American people for asserting their First Amendment rights, President Trump will imperil, if not destroy, the historic relationship between the presidency and the people. He will have made a national enemy out of the American people.
Like so much early United States law, the British Empire provided the precedent: the Riot Act. When colonists rioted -- and they frequently did -- law enforcement officials could read them the Riot Act before calling on the colonial militia to help restore order. The US Constitution gave the federal government limited enumerated powers while granting the states a far wider range of authority -- including using their militias to contain insurrections. At the Constitutional Convention, the framers repeatedly expressed fears of a centralized, standing federal army. Ultimately, in Article I the framers gave Congress the power "To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions."
In 1792, with the country embroiled in wars with Native Americans, Congress used that power and President George Washington signed the Militia Act or Calling Forth Act. The 1792 law specified that in cases of insurrection, the president could command the state militia -- the National Guard didn't exist yet -- to act if a state requested it. In cases of obstruction of the law, the president could act only if a federal judge explained that the resistance was "too powerful to be suppressed by the ordinary course of judicial proceedings."