The issue of the president’s power to send in the troops has bounced around in the federal courts, most recently with a federal appeals court ruling on Oct. 20 that the president did indeed have the power under the Insurrection Act to federalize the National Guard and deploy them to Portland. The majority in the 2-1 decision held that the administration’s response was proportional. In September, it found that the protests had collected 200 people. The administration sent in 200 troops, which the court called “a measured response sending only a minimal number of Guardsmen to restore order around the federal building.”
But whatever the facts on the ground in Portland — and local officials strongly disagreed with the court’s decision — it isn’t the case that half of all presidents have used the Insurrection Act. Since 1807, 15 presidents out of 47 have invoked the act about 30 times (the most recent being by George H.W. Bush during the 1992 L.A. riots).
The history is full of rich ironies, beginning with the passage of the Insurrection Act and its strange connection to Thomas Jefferson’s vice president, Aaron Burr. Burr is infamous for killing Alexander Hamilton in a duel. His role in American history has received renewed attention in recent years thanks to the Broadway musical, Hamilton.
Burr, an ambitious politician, always believed that the nation’s founders failed to recognize his talents. He made a run for the presidency in 1796, only to come in fourth. He pressed the winner, John Adams, for a military commission, but George Washington sent Adams a message, saying, “By all that I have known and heard, Colonel Burr is a brave and able officer, but the question is whether he has not equal talents at intrigue.” That was prophetic.
Burr made another run at the presidency in 1800. This time he placed second to Jefferson, amid a race full of smears. Second place, by the tradition of the time, made him vice president, but his relationship with Jefferson was tempestuous. The duel bloodied his reputation and effectively ended his political career.
So Burr cooked up a bizarre plan. He would settle in the new Louisiana Territory, provoke Mexico into battle, raise a small army of his own to win the war, and then keep the captured land for himself. That would finally make him rich. Or so reports to Jefferson suggested — no one knew for sure what Burr was up to.
Jefferson worried about how to stop the whispered conspiracy and, in particular, whether he could send in the army to quell a rebellion on American soil. His fellow Virginian, Secretary of State James Madison, counseled that a president could use federal troops to repel invasions from outside powers but not from forces within the country.
Armed with a letter from one of Burr’s conspirators, Jefferson went to Congress for legislation authorizing him to send federal troops into domestic action against internal insurrectionists. The result was the Insurrection Act of 1807, which gave Jefferson what he wanted.
Burr was arrested for treason but was never convicted. He decided to leave the country, and true to form, he had to borrow money to do so. But he left behind the Insurrection Act as one of his most lasting but least-known legacies.
The Insurrection Act — actually a series of amendments that continued to be revised until 1871— allows the president to deploy troops on the request of a governor or legislature to “suppress rebellion”; or suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” that threatens the rights of the people. It was invoked to quell the riots in Los Angeles following the Rodney King beating in 1992.
Whether in Trump’s case there is indeed a “rebellion” or “domestic violence” is the president’s call, according to an 1827 Supreme Court case. That, the Brennan Center for Justice has concluded, makes the law “dangerously overbroad and ripe for abuse,” which is leading to the court challenges against Trump and his deployment of federal troops by opponents who hope to trim his authority.
There’s a profound irony here. Trump’s opponents allege the president is trying to adopt Burr’s approach — simulating a conflict as an excuse to use military power — to invoke the presidential powers that Jefferson tried to use to control Burr.
Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
