We are seeing a letter from state governors circulating that is demanding federal troops leave their cities.

So let’s talk about what the president can and can’t do and why or why not.

Buckle up kids. This is gonna be a wild ride.

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The Insurrection Act of 1807 gives the President the power to deploy the National Guard or the military to enforce laws in certain circumstances.

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The Insurrection Act can be invoked if there’s an insurrection against state law and a state government requests federal assistance restoring order

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It can also be invoked if there’s an insurrection against federal law

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They REEEEALLY don’t want you to know this next part.

After the Civil War, Congress added a provision to The Insurrection Act allowing the president to invoke the Act without a state’s permission if the state is failing to protect the Constitutional rights of its citizens.

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Presidents have invoked the Insurrection Act dozens of times throughout history, according to a report by the Congressional Research Service.
https://crsreports.congress.gov/product/pdf/IF/IF10539

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It was invoked numerous times in the middle of the 20th century to enforce desegregation and respond to riots. For example, President Lyndon Johnson invoked the Act to deploy federal troops to Detroit in response to the 1967 riot.

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The last time it was used was in 1992, during the Los Angeles riots in response to the acquittal of four white police officers who had been charged with the beating of black motorist Rodney King. CA’s Governor requested federal assistance.

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Has the act ever been invoked without state’s permission? Yes.
President Dwight Eisenhower invoked the Act in 1957 to send the 101st Airborne Division to Little Rock, Ark., to maintain order during the integration of Central High School, against the wishes of ARs’ governor

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Can Trump use the Insurrection Act to send military troops into states to put down protests without permission from the states?

Absolutely.

As long as he meets the legal criteria:

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He could invoke the Act to enforce federal law, without states permission but he first must issue a proclamation ordering those violating the law to disperse. He has done this.

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If they do not disperse, he could then order either the military or the state’s National Guard to go in and suppress what he would be arguing are “unlawful obstructions, combinations or assemblages against the authority of the United States.”

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You know how Antifa are targeting federal buildings in Portland. That absolutely is on purpose.

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If a governor forbids Trump from sending troops into their state — J. B. Pritzker of IL and Cuomo of NY have already done — the President can still send in troops if he argues federal law is being obstructed or that the state isn’t protecting the rights of its citizens.

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If the protesters are engaging in looting and arson that is a textbook basis of the President’s invocation of the Act. DJT can argue that states are denying equal protection of the laws to citizens whose property is being burned or stolen.

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It’s possible to try this in court, and maybe some district judge will somehow argue victims of property rights violations are not people, but it would ultimately be delaying the inevitable.

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Source of this information: Daniel Hulsebosch, a professor of law at New York University School of Law who specializes in early U.S. legal history.

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Don’t hurt people. Don’t take their things.

Facts are not endorsements.

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