Comments: Insurrection Act revision

You're misreading the act.

The president can't just arbitrarily declare something "public disorder". It has to meet specific conditions, which have been the same conditions, word for word, that have been in the act since 1807. From a response that I wrote up earlier:

Given the process required for a bill to become law and the fact that the changes were passed by a bipartisan majority of both houses of Congress (94-0 in the Senate, and 398-23 in the House), I thought some of you may be interested to know about the actual changes made to the Insurrection Act of 1807. In order for military forces to be used under these provisions, the following conditions must be met:

(i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and

(ii) such violence results in a condition described in paragraph (2); or

(B) suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy results in a condition described in paragraph (2).

(2) A condition described in this paragraph is a condition that--

(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or

(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

These are the same conditions that must be met under the old wording of the statute; however, the surrounding language has been expanded to include application to any event that is still also determined to meet these conditions, such as major public emergencies, terrorist incidents, and so on, as opposed to only "insurrection" specifically. Congress must also be informed immediately and every 14 days thereafter during the exercise of such authority, which was not required under the old statute.

The changes to this law are likely the result of public outcry in response to the Hurricane Katrina disaster, particularly President Bush's refusal to activate National Guard elements by federal or presidential order given the previous restrictions to such an order. This expansion of the wording would have, for example, allowed Hurricane Katrina to fall under the guidelines as a "natural disaster", whereas previously "insurrection" was required.

Here is the old text:

-----
333. Interference with State and Federal law

The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if itó

(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or

(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws. In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.
-----

And here is the new text:

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333. Major public emergencies; interference with State and Federal law

(a) USE OF ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.--

(1) The President may employ the armed forces, including the National Guard in Federal service, to--

(A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that--

(i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and

(ii) such violence results in a condition described in paragraph (2); or

(B) suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy results in a condition described in paragraph (2).

(2) A condition described in this paragraph is a condition that--

(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or

(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

(3) In any situation covered by paragraph (1)(B), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

(b) NOTICE TO CONGRESS.--

The President shall notify Congress of the determination to exercise the authority in subsection (a)(1)(A) as soon as practicable after the determination and every 14 days thereafter during the duration of the exercise of the authority.
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As you can see, the wording REQUIRES that the identical conditions be met (included in paragraph 2), as well as both requirements under (a)(1)(A). The only real difference is allowing the conditions to be met during "a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition" as opposed to "insurrection" specifically. (Besides, can't it be argued that "insurrection" can be broadly defined, too, if the real interest is to declare martial law?)

Just because there is now "or other condition" wording in the revised statute does NOT mean they can just arbitrarily decide there is an "other condition" and deploy the military or national guard. The condition still MUST meet the guidelines above; it's just that now it's not an "insurrection" that also meets those conditions, it's any event that meets those conditions. But the conditions themselves are specific, and are actually carefully worded to guarantee Constitutional protections.

Regards,

Dave Schroeder
University of Wisconsin - Madison
das@doit.wisc.edu
http://das.doit.wisc.edu/

Posted by Dave Schroeder at October 30, 2006 01:40 PM

You know, Dave, that would be more reassuring if this Administration hadn't already shown a willingness to abrogate the parts of laws it didn't want to comply with (see the 700 or so signing statements) and its willingness to sanction torture as a tool despite the Geneva Conventions and other international treaties, not mention our own previous anti-torture statute.

Posted by Linkmeister at October 30, 2006 01:48 PM

Hi. Well, if the concern is that the President will break the law anyway, then why are we even concerned with the changes in wording?

It's my opinion (and I'm not saying this in a derogatory way, just making what I believe is an honest observation) that a lot of the talk about this is more to get people worked up about the real or perceived "wrongs" that the administration is felt to be responsible for, i.e., "here's another thing they're doing to strip away our freedoms" or "what are they up to now?", etc.

I definitely understand that, and I can see how someone would even want to use this idea that Bush is planning on declaring martial law as a political tool to motivate people to get off their behinds and make sure they vote.

But the fact is that, as it was revised, the specific set of conditions must still be true, namely, that the State and its constituted authorities have lost all capability to maintain public order and to enforce the law and uphold Constitutional guarantees. At that point, the situation is fairly dire, and, as from 1807 until now, federal intervention is probably warranted. Except now, it can happen for any circumstance that leads to that same specific set of conditions, instead of just "insurrection" or "rebellion". The people who are concerned about this being used against (possibly violent) mass protest, revolt, or other similar event could have had the old Insurrection Act of 1807 used against them as-is. So the only thing this applies to is circumstances that result in a State losing all control and order as explicitly defined in the statute, using the same wording that has been in place for 200 years.

If, on the other hand, the concern is that the President will break the law, then any discussions about changes to this law, for better or worse, are moot anyway, aren't they? In other words, I don't believe the law, as written, enables the president to "declare martial law" any easier than before, as complete public disorder and total loss of control on the part of the State and its subordinate authorities must already have occurred. Additionally, the President must now notify and advise Congress at the inception of such an exercise of authority and every 14 days thereafter, an requirement not in the previous statute. But if we're concerned about the President doing whatever he wants anyway, then why even be concerned with the implications of this law at all?

Thanks,

- Dave

Posted by Dave Schroeder at October 30, 2006 02:02 PM

I would be interested to see the president's signing statement to this law. I also should note that I was under the impression that it was already possible for the president to declare marshall law under extreme circumstances and deploy national gaurd units without a states approval if communications had broken down.

I am certainly leery of this regime making it easier than it already is to do this sort of thing.

Posted by DuWayne at October 30, 2006 02:07 PM

"But if we're concerned about the President doing whatever he wants anyway, then why even be concerned with the implications of this law at all?"

I see what you're saying, but it seems to me that this is part of an ongoing pattern of disregard for law and arrogation of power to the Executive Branch, which needs to be (at the least) identified.

Posted by Linkmeister at October 30, 2006 02:10 PM

The revisions to the Insurrection Act of 1807 were contained in the John Warner National Defense Authorization Act of 2007. Here is the associated signing statement:

http://www.presidency.ucsb.edu/ws/index.php?pid=24198

Nothing in the signing statement "reinterprets" or lays any conditions on anything having to do with the revisions to the Insurrection Act.

I think people are taking a fairly innocent update that expands the set of circumstances the military and/or national guard may be used under already-very-dire conditions to more broadly include any set of circumstances that might have led there, and not just "insurrection".

If you're arguing that this is bad even if it broadens the scope in any way, I guess that's one point of view. I'm just pointing out that the conditions that have to be met for this authority to be exercised haven't changed, and there are no conditions attached in a signing statement.

Again, if you're concerned about the President just out-and-out ignoring the law anyway, the contents of the law are probably moot.

- Dave

Posted by Dave Schroeder at October 30, 2006 02:14 PM

But see, in the signing statement itself it says:

The executive branch shall construe sections 914 and 1512 of the Act, which purport to make consultation with specified Members of Congress a precondition to the execution of the law, as calling for but not mandating such consultation, as is consistent with the Constitution's provisions concerning the separate powers of the Congress to legislate and the President to execute the laws. (Emphasis mine)

and

A number of provisions in the Act call for the executive branch to furnish information to the Congress or other entities on various subjects.

[snip]

The executive branch shall construe such provisions in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.

So, ok, I'm arguing that this is yet another example of the President insisting he has the right to ignore Congress and do what he wants.

You're saying, that may be true, but it's not germane to the Insurrection Act itself. Right?

If that's your argument, then OK, but I'd say "keep your hand on your wallet, because these people will claim they have the right to do anything just on the basis of their signing statements."

Posted by Linkmeister at October 30, 2006 02:22 PM

Well, that's not anything that has to do with the revisions to the Insurrection Act. Remember, the revisions to the Insurrection Act of 1807 happen inside of the 2007 Defense Appropriations Bill, which is almost 1000 pages long. The modifications to the Insurrection Act, which includes the new provision to notify Congress (which also wasn't required for the previous 200 years) happen in section 1041:

http://www.govtrack.us/congress/billtext.xpd?bill=s109-2766

So, while in general I agree that the administration has a propensity to "reinterpret" pieces of legislation it signs with signing statements, the revisions to the Insurrection Act specifically, which is what is at issue here, is not one of those times. If you were just making this point generally, and not in reference to the Insurrection Act anyway, then, yes, your point is taken.

- Dave

Posted by Dave Schroeder at October 30, 2006 02:40 PM

Upon re-reading the text you posted, I'm struck by paragraph 2 B.

(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

It's entirely possible that this or any future Administration could define "oppose or obstruct" in a manner differently than what we've previously expected from our government, no?

Posted by Linkmeister at October 30, 2006 03:22 PM

Well, that was in the original text of the Insurrection Act of 1807.

And in order for (a)(2)(B) to be invoked,

(i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order

must still be true.

And if that disorder occurs in the context of violent protest, riot, rebellion, or revolt, it all would have fallen under the definition of "insurrection, domestic violence, unlawful combination, or conspiracy" defined in the original statute.

I actually made a nice table in the wikipedia article on the Insurrection Act (which I have been updating today) that shows the exact differences:

http://en.wikipedia.org/wiki/Insurrection_Act#Comparison_of_differences

Again, the only "new" thing in the revised Act is the fact that the conditions could be met if potentially any circumstances (which would very likely be a major public emergency or disaster) led to them, as opposed to just an act of "insurrection". Remember, the things people are afraid of, like a demonstration of people "opposed" to the government suddenly being declared a target, could absolutely have been argued to fall under the old wording of the act. The new wording includes provisions for major public emergencies, including "natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition"; but remember, even "other condition" must still meet the rest of the guidelines, all of which are identical to the old statute.

The reason this isn't getting (and won't get) any attention in the mainstream press (unless someone woefully misinterprets things, or someone gets enough momentum behind it to use as a political sword) is because it's exactly as I've described: a minor update for a 200 year old law that merely expands the circumstances that could lead to such exercise of authority to include disasters, emergencies, terrorist attacks, or anything else that leads to a complete breakdown of the ability of a State or its subordinate entities to maintain public order, enforce laws, and uphold Constitutional guarantees.

- Dave

Posted by Dave Schroeder at October 30, 2006 03:41 PM