Transcript of OA392: In the Aftermath of George Floyd

Insurrection Act

Thomas:         Trump invoking the insurrection act.  That sounds good, sounds cool.

Andrew:         [Sighs] Yeah.

Thomas:         How’s that gonna go?

Andrew:         So this is the Insurrection Act of 1807.  Again, I want to put this in the larger context of this administration’s unprecedented war on the press.  Let’s talk about the application of that. 

The last time we talked about this was in episode 72 back in 2017 involving Montana congressional candidate Greg Gianforte, who body slammed a journalist, Ben Jacobs of The Guardian.  Then the next day won election to congress.  He pled guilty to assault and he was reelected in 2018 by, admittedly, by a five-point margin, 51-46.

Thomas:         Did he body slam another journalist?  I wonder if he figured oh, this is my ritual now.  It’s my good luck ritual.

Andrew:         You make the joke, it was a matter of public record at the time that various conservative newspapers in Montana pulled their endorsement of Gianforte, that he is engaged in systematic behavior to try and intimidate the press, the most disturbing of which was pointing out in a campaign meeting to a journalist (quote) “you’re outnumbered in this room” (end of quote).  Uhh… yeah. [Laughs] You say did he go out and celebrate by body slamming more journalists?  Kind of.  It’s disgusting, this would be instantly disqualifying even in Montana at any point prior to the Trump presidency.

In connection with the George Floyd protests, I know of at least two incidents right now in which journalists have been explicitly targeted by militarized police.  There are-

Thomas:         There are tons.

Andrew:         Tons more.  Linda Tirado was shot in the eye with a rubber bullet and is now blind in that eye.  It caused her cornea to explode and she’s blind in that eye.  In Lafayette Park in DC, relatively close to where I live, you can watch video of, again, Capitol police with Lexan riot shields walking down the street, turning to an Australian crew – it was 7 News Australia – and slamming the shield first into the camera and then into the journalist.  It’s … [Sighs] yeah.  This is not the way a country’s supposed to operate.  This is not the way a free country is supposed to operate.

As a result of violence being perpetrated by local police on peaceful protestors, Donald Trump says he’s going to use the Insurrection Act of 1807 to deploy military forces to various cities.  A couple of questions here, there’s the “can he do that?” “Does he need to get the permission of the local authorities?”  Then “if he does it anyway will the courts do anything to stop it?”

Thomas:         [Laughs]

Andrew:         I have been through the insurrection act, which again, 213 years old at this point.  It’s been amended a couple of times, so it no longer reads in the delightful old-timey English with which it was initially enacted.  It has been moved several times in the U.S. Code, which is super fun when you’re looking for cases, by the way – put a pin in that one.  It is now found in 18 U.S.C. §§ 251-255.  I’m gonna talk about those briefly.

I wanna answer the first question – or I guess this was the second question.  The provisions that Donald Trump is likely to invoke do not require the consent of the state or the city in which federal troops or other resources are to be sent.  There is another section, § 251, that does require the state’s consent but that’s not what Donald Trump is gonna invoke.  He’s going to invoke either 252 or 253.  Spoiler alert, I don’t think either of these justify Trump’s use of the military in these cases, but this is what his argument will be predicated upon.  I don’t steelman Donald Trump, but we will talk about the argument that he is likely to make in a minute.

So 252 says “Whenever the President considers that unlawful obstructions, combinations, or assemblages,” (so that’s the one theory) “or rebellion against the authority of the United States,” (that’s the other thing).  So you have to have one of those two things – 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.”  That’s 252.

If you’re thinking “boy, peaceful protests don’t seem to fall into either of those two categories, you are 100% correct.  They do not. 

Thomas:         I was more distracted by the state – he’s calling the state military?  Maybe I didn’t understand.

Andrew:         Yeah, it means he can use the National Guard.

Thomas:         Right, but-

Andrew:         Yeah.  He may nationalize the National Guard.  Ordinarily the Maryland National Guard reports to the governor of Maryland.

Thomas:         Oh.

Andrew:         The question is can Donald Trump call up the National Guard and federalize the National Guard in order to use those elements in quelling the insurrection in Baltimore if he so designates?  The answer under 252 is you can do that if you have one of those two things.  If you have an unlawful assemblage, or an outright rebellion against the United States such that it is (quote) “impracticable to enforce the laws of the US in court.”  You don’t have that!

Thomas:         Can I just say that the argument for this?

Andrew:         Mm-hmm?

Thomas:         Is less bad – seems to me less bad than many other bullshit arguments we’ve had to accept out of the Supreme Court?  Now I’m kinda nervous.

Andrew:         I share your concern.  I share your worry, and we’ll get to that.  Look, it seems to me you can say “less bad than some of the arguments” but still, not a great fit for peaceful protests being knocked down by cops in body armor. 

There is also 253, which again is not a fit but requires more to unpack.  Again, I’m not in the habit of giving advice to the President’s lawyers.  In my view they’re likely to invoke both of these sections and sort of throw everything at the wall and hope something sticks. 

Thomas:         And it will.

Andrew:         [Laughs] Thanks Negatron.  253 says “the President, by using the militia” (that is the National Guard) “or the armed forces, or both, or by any other means,” (I have no idea what that means and neither does any case law) “shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it” and then I’m gonna do the criteria, but again let’s parse through the first thing.  What he’s gonna do is use the armed forces to suppress domestic violence.  That’s going to be the language.  If that domestic violence:

“(1) so hinders the execution of the laws of that 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.” That’s all part one.  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 the first clause, “the State shall be considered to have denied the equal protection of laws secured by the Constitution.” 

That’s a lot, let’s unpack all of that.  Almost every time that the Insurrection Act has been invoked by Presidents in recent memory it has been invoked by section one.  In particular, by Presidents Kennedy and Johnson during the civil rights struggles of the 1960s.  But dating back to 1871, President Grant sent troops into several counties in South Carolina to suppress Ku Klux Klan violence.  Eisenhower used it at the start of the Civil Rights Movement.  In 1961 President Kennedy utilized his power on four separate occasions to order the National Guard to remove obstructions of justice in the state of Mississippi, in 1963 in Alabama and so on.  That was in connection with, as you might be thinking “hmm, what happened in 1963 in Alabama?”  That was Supreme Court orders requiring integration of public schools.  That was in light of Brown v. Board of Education

You remember George Wallace standing at the University of Alabama throwing his arms open and saying “segregation now, segregation forever.” 

Thomas:         [Mumbling]

Andrew:         So Kennedy used the Insurrection Act to send Alabama National Guard units down to the University of Alabama to remove George Wallace and allow African American students to attend the University of Alabama.  That’s how this is supposed to be used.  That’s not how Donald Trump intends to use the Insurrection Act. 

The closest analogues that I can find are, again, Republican presidents George W. Bush, Senior, used the-

Thomas:         H.W. Bush?

Andrew:         You are correct, I am wrong, we’ll leave that in there.  This is an Andrew Was Wrong episode, yeah.  [Laughs] George H.W. Bush invoked the insurrection act on two occasions.  One was in connection with the Rodney King riots in Los Angeles.  That was Executive Order 12804 and Proclamation 6427.  In that case the Republican governor of California said that domestic violence and disorder conditions exist in and about the city and county of Los Angeles and that available law enforcements are unable to suppress such acts of violence and restore law and order and therefore federal assistance was sent in.  The underlying Proclamation 6427 specifically requested federal assistance in suppressing the violence and restoring law and order in the affected area.

It was also used in 1989 in the wake of Hurricane Hugo in the U.S. Virgin Islands to suppress violence and restore law and order.  Neither of those mention a request by the governor of the U.S. Virgin Islands. 

That’s the precedent that you have.  Again, I think that it is distinguishable and I think that it is distinguishable on the grounds that condition one requires that the people against whom you are deploying the troops are violating the equal protection of the laws which is clearly not happening here.  Condition number two requires that the violence be something that the local authorities are unable to comply with, to mobilize sufficient resources.  That would imply, if not outright require, the consent of the mayors and governors to deploy the troops. 

Those are your distinctions, but as you point out, as with a lot of Donald Trump, most of these laws – this law was written in 1807 when the founding fathers thought well surely we will protected from a moron being elected President of the United States and they could not see a gameshow host coming.  These laws use broad language and they have broad delegations of authority.  It’s one of the many, many things we’re gonna have to fix in 2021.  There’s a real danger here.  So now you know.

Thomas:         [Sighs] Yeah.  Boy, we’re way over time.  So item three?  The curfews?

Andrew:         Yeah, let’s do this.

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