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The Insurrection Act needs a major overhaul. Originally enacted in 1792, the law grants the president the authority to deploy the U.S. military domestically and use it against Americans under certain conditions. While there are rare circumstances in which such authority might be necessary, the law, which has not been meaningfully updated in over 150 years, is dangerously overbroad and ripe for abuse.
More on Domestic Deployment of the Military >>
What is the Insurrection Act?
The Insurrection Act authorizes the president to deploy military forces inside the United States to suppress rebellion or domestic violence or to enforce the law in certain situations. The statute implements Congress’s authority under the Constitution to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” It is the primary exception to the Posse Comitatus Act, under which federal military forces are generally barred from participating in civilian law enforcement activities.
Although it is often referred to as the “Insurrection Act of 1807,” the law is actually an amalgamation of different statutes enacted by Congress between 1792 and 1871. Today, these provisions occupy Sections 251 through 255 in Title 10 of the United States Code.
What does invoking the Insurrection Act allow the president and military to do?
Under normal circumstances, the Posse Comitatus Act forbids the U.S. military — including federal armed forces and National Guard troops who have been called into federal service — from taking part in civilian law enforcement. This prohibition reflects an American tradition that views military interference in civilian government as being inherently dangerous to liberty.
Invoking the Insurrection Act temporarily suspends the Posse Comitatus rule and allows the president to deploy the military to assist civilian authorities with law enforcement. That might involve soldiers doing anything from enforcing a federal court order to suppressing an uprising against the government. Of course, not every domestic use of the military involves law enforcement activity. Other laws, such as the Stafford Act, allow the military to be used to respond to natural disasters, public health crises, and other similar events without waiving the restrictions of the Posse Comitatus Act.
In theory, the Insurrection Act should be used only in a crisis that is truly beyond the capacity of civilian authorities to manage. However, the Insurrection Act fails to adequately define or limit when it may be used and instead gives the president significant power to decide when and where to deploy U.S. military forces domestically.
When can the president invoke the Insurrection Act?
Troops can be deployed under three sections of the Insurrection Act. Each of these sections is designed for a different set of situations. Unfortunately, the law’s requirements are poorly explained and leave virtually everything up to the discretion of the president.
Section 251 allows the president to deploy troops if a state’s legislature (or governor if the legislature is unavailable) requests federal aid to suppress an insurrection in that state. This provision is the oldest part of the law, and the one that has most often been invoked.
While Section 251 requires state consent, Sections 252 and 253 allow the president to deploy troops without a request from the affected state, even against the state’s wishes. Section 252 permits deployment in order to “enforce the laws” of the United States or to “suppress rebellion” whenever “unlawful obstructions, combinations, or assemblages, or rebellion” make it “impracticable” to enforce federal law in that state by the “ordinary course of judicial proceedings.”
Section 253 has two parts. The first allows the president to use the military in a state to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” that “so hinders the execution of the laws” that any portion of the state’s inhabitants are deprived of a constitutional right and state authorities are unable or unwilling to protect that right. Presidents Dwight D. Eisenhower and John F. Kennedy relied on this provision to deploy troops to desegregate schools in the South after the Supreme Court’s landmark decision in Brown v. Board of Education.
The second part of Section 253 permits the president to deploy troops to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” in a state that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” This provision is so bafflingly broad that it cannot possibly mean what it says, or else it authorizes the president to use the military against any two people conspiring to break federal law.
Who decides when the conditions for deployment have been met?
Nothing in the text of the Insurrection Act defines “insurrection,” “rebellion,” “domestic violence,” or any of the other key terms used in setting forth the prerequisites for deployment. Absent statutory guidance, the Supreme Court decided early on that this question is for the president alone to decide. In the 1827 case Martin v. Mott, the Court ruled that “the authority to decide whether [an exigency requiring the militia to be called out] has arisen belongs exclusively to the President, and . . . his decision is conclusive upon all other persons.”
However, there are exceptions to the general rule that courts can’t review a president’s decision to deploy. In subsequent cases, the Supreme Court has suggested that courts may step in if the president acts in bad faith, exceeds “a permitted range of honest judgment,” makes an obvious mistake, or acts in a way manifestly unauthorized by law.
Moreover, even in cases where the courts will not second-guess the decision to deploy troops, the Supreme Court clarified in Sterling v. Constantin (1932) that courts may still review the lawfulness of the military’s actions once deployed. In other words, federal troops are not free to violate other laws or trample on constitutional rights just because the president has invoked the Insurrection Act.
Is invoking the Insurrection Act the same as declaring martial law?
The Insurrection Act does not authorize martial law. The term “martial law” has no established definition, but it is generally understood as a power that allows the military to take over the role of civilian government in an emergency. By contrast, the Insurrection Act generally permits the military to assist civilian authorities (whether state or federal), not take their place. Under current law, the president has no authority to declare martial law.
How has the Insurrection Act been used in the past?
The Insurrection Act has been invoked numerous times throughout American history for a variety of purposes. Presidents George Washington and John Adams used it in response to early rebellions against federal authority. President Abraham Lincoln invoked it at the start of the Civil War, and President Ulysses Grant used it to crush the first incarnation of the Ku Klux Klan in the 1870s. Several other presidents, including Andrew Jackson, Rutherford Hayes, and Grover Cleveland, have deployed troops under the Insurrection Act to intervene in labor disputes, invariably on the side of employers. Most famously, Presidents Eisenhower, Kennedy, and Lyndon B. Johnson all invoked the Insurrection Act during the civil rights movement to enforce federal court orders desegregating schools and other institutions in the South.
When was the Insurrection Act last invoked?
The Insurrection Act was last invoked in 1992, when the governor of California requested military aid from President George H.W. Bush in response to civil unrest in Los Angeles that followed the acquittal of four white police officers charged with beating Black motorist Rodney King. At 29 years and counting, this is the longest period the United States has ever gone without an invocation of the Insurrection Act.
No president has unilaterally invoked the Insurrection Act against a state’s wishes since Lyndon Johnson did so to provide protection for civil rights activists in Alabama marching from Selma to Montgomery in 1965.
How should the Insurrection Act be reformed?
The lack of clear standards within the Insurrection Act itself, combined with the Supreme Court’s ruling in Martin v. Mott, has created a situation where the president has almost limitless discretion to deploy federal troops in cases of civil unrest. Such unbounded authority to use the military domestically has always been dangerous. In the 21st century, it is also unnecessary and untenable. The United States has changed profoundly in the 150 years since the Insurrection Act was last amended, as have the capabilities of state and federal civilian authorities and the expectations of the American people. The Insurrection Act — arguably the most potent of the president’s emergency powers — should reflect those realities.
To address these concerns, Congress should amend the Insurrection Act to define more clearly and precisely what situations may trigger it. Congress also should establish mechanisms for review of the president’s decision that will guard against abuse while still preserving the president’s flexibility in a crisis.
www.brennancenter.org
More on Domestic Deployment of the Military >>
What is the Insurrection Act?
The Insurrection Act authorizes the president to deploy military forces inside the United States to suppress rebellion or domestic violence or to enforce the law in certain situations. The statute implements Congress’s authority under the Constitution to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” It is the primary exception to the Posse Comitatus Act, under which federal military forces are generally barred from participating in civilian law enforcement activities.
Although it is often referred to as the “Insurrection Act of 1807,” the law is actually an amalgamation of different statutes enacted by Congress between 1792 and 1871. Today, these provisions occupy Sections 251 through 255 in Title 10 of the United States Code.
What does invoking the Insurrection Act allow the president and military to do?
Under normal circumstances, the Posse Comitatus Act forbids the U.S. military — including federal armed forces and National Guard troops who have been called into federal service — from taking part in civilian law enforcement. This prohibition reflects an American tradition that views military interference in civilian government as being inherently dangerous to liberty.
Invoking the Insurrection Act temporarily suspends the Posse Comitatus rule and allows the president to deploy the military to assist civilian authorities with law enforcement. That might involve soldiers doing anything from enforcing a federal court order to suppressing an uprising against the government. Of course, not every domestic use of the military involves law enforcement activity. Other laws, such as the Stafford Act, allow the military to be used to respond to natural disasters, public health crises, and other similar events without waiving the restrictions of the Posse Comitatus Act.
In theory, the Insurrection Act should be used only in a crisis that is truly beyond the capacity of civilian authorities to manage. However, the Insurrection Act fails to adequately define or limit when it may be used and instead gives the president significant power to decide when and where to deploy U.S. military forces domestically.
When can the president invoke the Insurrection Act?
Troops can be deployed under three sections of the Insurrection Act. Each of these sections is designed for a different set of situations. Unfortunately, the law’s requirements are poorly explained and leave virtually everything up to the discretion of the president.
Section 251 allows the president to deploy troops if a state’s legislature (or governor if the legislature is unavailable) requests federal aid to suppress an insurrection in that state. This provision is the oldest part of the law, and the one that has most often been invoked.
While Section 251 requires state consent, Sections 252 and 253 allow the president to deploy troops without a request from the affected state, even against the state’s wishes. Section 252 permits deployment in order to “enforce the laws” of the United States or to “suppress rebellion” whenever “unlawful obstructions, combinations, or assemblages, or rebellion” make it “impracticable” to enforce federal law in that state by the “ordinary course of judicial proceedings.”
Section 253 has two parts. The first allows the president to use the military in a state to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” that “so hinders the execution of the laws” that any portion of the state’s inhabitants are deprived of a constitutional right and state authorities are unable or unwilling to protect that right. Presidents Dwight D. Eisenhower and John F. Kennedy relied on this provision to deploy troops to desegregate schools in the South after the Supreme Court’s landmark decision in Brown v. Board of Education.
The second part of Section 253 permits the president to deploy troops to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” in a state that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” This provision is so bafflingly broad that it cannot possibly mean what it says, or else it authorizes the president to use the military against any two people conspiring to break federal law.
Who decides when the conditions for deployment have been met?
Nothing in the text of the Insurrection Act defines “insurrection,” “rebellion,” “domestic violence,” or any of the other key terms used in setting forth the prerequisites for deployment. Absent statutory guidance, the Supreme Court decided early on that this question is for the president alone to decide. In the 1827 case Martin v. Mott, the Court ruled that “the authority to decide whether [an exigency requiring the militia to be called out] has arisen belongs exclusively to the President, and . . . his decision is conclusive upon all other persons.”
However, there are exceptions to the general rule that courts can’t review a president’s decision to deploy. In subsequent cases, the Supreme Court has suggested that courts may step in if the president acts in bad faith, exceeds “a permitted range of honest judgment,” makes an obvious mistake, or acts in a way manifestly unauthorized by law.
Moreover, even in cases where the courts will not second-guess the decision to deploy troops, the Supreme Court clarified in Sterling v. Constantin (1932) that courts may still review the lawfulness of the military’s actions once deployed. In other words, federal troops are not free to violate other laws or trample on constitutional rights just because the president has invoked the Insurrection Act.
Is invoking the Insurrection Act the same as declaring martial law?
The Insurrection Act does not authorize martial law. The term “martial law” has no established definition, but it is generally understood as a power that allows the military to take over the role of civilian government in an emergency. By contrast, the Insurrection Act generally permits the military to assist civilian authorities (whether state or federal), not take their place. Under current law, the president has no authority to declare martial law.
How has the Insurrection Act been used in the past?
The Insurrection Act has been invoked numerous times throughout American history for a variety of purposes. Presidents George Washington and John Adams used it in response to early rebellions against federal authority. President Abraham Lincoln invoked it at the start of the Civil War, and President Ulysses Grant used it to crush the first incarnation of the Ku Klux Klan in the 1870s. Several other presidents, including Andrew Jackson, Rutherford Hayes, and Grover Cleveland, have deployed troops under the Insurrection Act to intervene in labor disputes, invariably on the side of employers. Most famously, Presidents Eisenhower, Kennedy, and Lyndon B. Johnson all invoked the Insurrection Act during the civil rights movement to enforce federal court orders desegregating schools and other institutions in the South.
When was the Insurrection Act last invoked?
The Insurrection Act was last invoked in 1992, when the governor of California requested military aid from President George H.W. Bush in response to civil unrest in Los Angeles that followed the acquittal of four white police officers charged with beating Black motorist Rodney King. At 29 years and counting, this is the longest period the United States has ever gone without an invocation of the Insurrection Act.
No president has unilaterally invoked the Insurrection Act against a state’s wishes since Lyndon Johnson did so to provide protection for civil rights activists in Alabama marching from Selma to Montgomery in 1965.
How should the Insurrection Act be reformed?
The lack of clear standards within the Insurrection Act itself, combined with the Supreme Court’s ruling in Martin v. Mott, has created a situation where the president has almost limitless discretion to deploy federal troops in cases of civil unrest. Such unbounded authority to use the military domestically has always been dangerous. In the 21st century, it is also unnecessary and untenable. The United States has changed profoundly in the 150 years since the Insurrection Act was last amended, as have the capabilities of state and federal civilian authorities and the expectations of the American people. The Insurrection Act — arguably the most potent of the president’s emergency powers — should reflect those realities.
To address these concerns, Congress should amend the Insurrection Act to define more clearly and precisely what situations may trigger it. Congress also should establish mechanisms for review of the president’s decision that will guard against abuse while still preserving the president’s flexibility in a crisis.
The Insurrection Act Explained
The law, which lets the president deploy the military domestically and use it for civilian law enforcement, is dangerously vague and in urgent need of reform.
Guide to Invocations of the Insurrection Act
In 230 years, the Act has been invoked in response to 30 crises.
As the guide shows, invocation of the Insurrection Act has not always led to the actual deployment of troops. Sometimes the mere threat of military intervention has been enough to resolve a crisis. On the opposite end of the spectrum, in some cases, the Act has been invoked multiple times in response to a single event. The guide presents these latter incidents as single entries but includes citations to all relevant presidential proclamations that invoked the Act. Lastly, the guide also includes three events (highlighted) that are often regarded as uses of the Insurrection Act even though the requirements of the law were not followed.
To download an Excel version of the guide with sourcing, click here.
The Posse Comitatus Act bars federal troops from participating in civilian law enforcement except when expressly authorized by law. This 147-year-old law embodies an American tradition that sees military interference in civilian affairs as a threat to both democracy and personal liberty. However, recent events have revealed dangerous gaps in the law’s coverage that Congress must address.
More on Domestic Deployment of the Military >>
What does the term “posse comitatus” mean?
In British and American law, a posse comitatus is a group of people who are mobilized by the sheriff to suppress lawlessness in the county. In any classic Western film, when a lawman gathers a “posse” to pursue the outlaws, they are forming a posse comitatus. The Posse Comitatus Act is so named because one of the things it prohibits is using soldiers rather than civilians as a posse comitatus.
What are the origins of the Posse Comitatus Act?
The Posse Comitatus Act was passed in 1878, after the end of Reconstruction and the return of white supremacists to political power in both southern states and Congress. Through the law, Congress sought to ensure that the federal military would not be used to intervene in the establishment of Jim Crow in the former Confederacy.
Despite the ignominious origins of the law itself, the broader principle that the military should not be allowed to interfere in the affairs of civilian government is a core American value. It finds expression in the Constitution’s division of power over the military between Congress and the president, and in the guarantees of the Third, Fourth, Fifth, and Sixth Amendments, which were in part reactions to abuses committed by the British army against American colonists.
Today, the Posse Comitatus Act operates as an extension of these constitutional safeguards. Moreover, there are statutory exceptions to the law that allow the president to use the military to suppress genuine rebellions and to enforce federal civil rights laws.
What does the Posse Comitatus Act say?
The Posse Comitatus Act consists of just one sentence: “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”
In practice, this means that members of the military who are subject to the law may not participate in civilian law enforcement unless doing so is expressly authorized by a statute or the Constitution.
Are all members of the military covered by the Posse Comitatus Act?
No, only federal military personnel are covered. While the Posse Comitatus Act refers only to the Army and Air Force, a different statute extends the same rule to the Navy and Marine Corps. The Coast Guard, though part of the federal armed forces, has express statutory authority to perform law enforcement and is not bound by the Posse Comitatus Act.
Members of the National Guard are rarely covered by the Posse Comitatus Act because they usually report to their state or territory’s governor. That means they are free to participate in law enforcement if doing so is consistent with state law. However, when Guard personnel are called into federal service, or “federalized,” they become part of the federal armed forces, which means they are bound by the Posse Comitatus Act until they are returned to state control.
What are the main statutory exceptions to the Posse Comitatus Act?
There are many statutory exceptions to the Posse Comitatus Act, but the most important one is the Insurrection Act. Under this law, in response to a state government’s request, the president may deploy the military to suppress an insurrection in that state. In addition, the Insurrection Act allows the president — with or without the state government’s consent — to use the military to enforce federal law or suppress a rebellion against federal authority in a state, or to protect a group of people’s civil rights when the state government is unable or unwilling to do so.
What are the constitutional exceptions to the Posse Comitatus Act?
There are no constitutional exceptions to the Posse Comitatus Act. The law allows only for express exceptions, and no part of the Constitution expressly empowers the president to use the military to execute the law. This conclusion is consistent with the law’s legislative history, which suggests that its drafters chose to include the language about constitutional exceptions as part of a face-saving compromise, not because they believed any existed.
This has not stopped the Department of Defense from claiming that constitutional exceptions to the law exist. The Department has long claimed that the Constitution implicitly gives military commanders “emergency authority” to unilaterally use federal troops “to quell large-scale, unexpected civil disturbances” when doing so is “necessary” and prior authorization by the president is impossible. In the past, the department also claimed an inherent constitutional power to use the military to protect federal property and functions when local governments could not or would not do so. The validity of these claimed authorities has never been tested in court.
What are the weak points in the Posse Comitatus Act?
Events in 2020 and 2021 have highlighted two loopholes in the Posse Comitatus Act. The first involves the District of Columbia National Guard. Unlike all other state and territorial National Guards, the DC Guard is always under presidential control. Despite this, the Department of Justice has for years asserted that the DC Guard can operate in a non-federal, “militia” status, in which it is not covered by the Posse Comitatus Act. By this interpretation, presidents can use the DC Guard for law enforcement whenever they choose.
Another weakness in the Posse Comitatus Act arises from the law that allows the National Guard to operate in “Title 32 status.” In Title 32 status, a middle ground between purely state operations and federalization, Guard personnel are paid with federal funds and may perform missions requested by the president, but they remain under state command and control. That means they are not subject to the Posse Comitatus Act, even though they are serving federal interests.
How have these loopholes in the Posse Comitatus Act been exploited?
In the summer of 2020, President Trump deployed the DC National Guard into Washington to police mostly peaceful protests against law enforcement brutality and racism. Simultaneously, over the objections of DC’s mayor, the administration asked state governors to deploy their own Guard personnel into Washington in Title 32 status, and 11 governors did so. Although these out-of-state forces were nominally under their governors’ control, it was later revealed that they were reporting up through the DC Guard’s chain of command for “coordination” purposes. That meant they were ultimately taking orders from the president. In this way, the Trump administration brought a large, federally controlled military force into Washington and used it for civilian law enforcement, all while skipping over the procedures in the Insurrection Act and evading the political costs of invoking it. That is exactly what the Posse Comitatus Act is meant to prevent.
Moreover, the deployment of non-federalized, out-of-state Guard forces into a jurisdiction without its consent represents another threat to the Posse Comitatus Act. When operating in Title 32 status, Guard forces are exempt from the Posse Comitatus Act because they are under state command and control. A key part of that control is the governor’s right to decline a particular federal mission. That right is meaningless if the president can simply approach a different governor and ask her to deploy her state’s Guard into the unwilling governor’s state. In this scenario, the cooperating governor becomes a fig leaf for the president to use the military as a police force anywhere in the country, free from the constraints of the Posse Comitatus Act.
How should the Posse Comitatus Act be reformed?
Congress should pass three reforms to help close these loopholes in the Posse Comitatus Act. First, it should transfer control over the DC National Guard from the president to the mayor of Washington. The president would still be able to take command of the DC Guard when necessary by federalizing it, but it would then be subject to the Posse Comitatus Act, just like all other federally controlled military forces.
Second, Congress should clarify that governors may not send their National Guard forces into another state or territory without the latter jurisdiction’s consent. This will stop future presidents who want to use the military domestically, but do not want to follow the laws established by Congress, from going from governor to governor until they find one who is willing to do their dirty work.
Third, Congress should enact a law clarifying that the Posse Comitatus Act applies to National Guard forces whenever they report through a federal chain of command, regardless of whether they have officially been called into federal service. This will ensure that form is not elevated over substance and will more fully realize the principle behind the law.
www.brennancenter.org
More on Domestic Deployment of the Military >>
What does the term “posse comitatus” mean?
In British and American law, a posse comitatus is a group of people who are mobilized by the sheriff to suppress lawlessness in the county. In any classic Western film, when a lawman gathers a “posse” to pursue the outlaws, they are forming a posse comitatus. The Posse Comitatus Act is so named because one of the things it prohibits is using soldiers rather than civilians as a posse comitatus.
What are the origins of the Posse Comitatus Act?
The Posse Comitatus Act was passed in 1878, after the end of Reconstruction and the return of white supremacists to political power in both southern states and Congress. Through the law, Congress sought to ensure that the federal military would not be used to intervene in the establishment of Jim Crow in the former Confederacy.
Despite the ignominious origins of the law itself, the broader principle that the military should not be allowed to interfere in the affairs of civilian government is a core American value. It finds expression in the Constitution’s division of power over the military between Congress and the president, and in the guarantees of the Third, Fourth, Fifth, and Sixth Amendments, which were in part reactions to abuses committed by the British army against American colonists.
Today, the Posse Comitatus Act operates as an extension of these constitutional safeguards. Moreover, there are statutory exceptions to the law that allow the president to use the military to suppress genuine rebellions and to enforce federal civil rights laws.
What does the Posse Comitatus Act say?
The Posse Comitatus Act consists of just one sentence: “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”
In practice, this means that members of the military who are subject to the law may not participate in civilian law enforcement unless doing so is expressly authorized by a statute or the Constitution.
Are all members of the military covered by the Posse Comitatus Act?
No, only federal military personnel are covered. While the Posse Comitatus Act refers only to the Army and Air Force, a different statute extends the same rule to the Navy and Marine Corps. The Coast Guard, though part of the federal armed forces, has express statutory authority to perform law enforcement and is not bound by the Posse Comitatus Act.
Members of the National Guard are rarely covered by the Posse Comitatus Act because they usually report to their state or territory’s governor. That means they are free to participate in law enforcement if doing so is consistent with state law. However, when Guard personnel are called into federal service, or “federalized,” they become part of the federal armed forces, which means they are bound by the Posse Comitatus Act until they are returned to state control.
What are the main statutory exceptions to the Posse Comitatus Act?
There are many statutory exceptions to the Posse Comitatus Act, but the most important one is the Insurrection Act. Under this law, in response to a state government’s request, the president may deploy the military to suppress an insurrection in that state. In addition, the Insurrection Act allows the president — with or without the state government’s consent — to use the military to enforce federal law or suppress a rebellion against federal authority in a state, or to protect a group of people’s civil rights when the state government is unable or unwilling to do so.
What are the constitutional exceptions to the Posse Comitatus Act?
There are no constitutional exceptions to the Posse Comitatus Act. The law allows only for express exceptions, and no part of the Constitution expressly empowers the president to use the military to execute the law. This conclusion is consistent with the law’s legislative history, which suggests that its drafters chose to include the language about constitutional exceptions as part of a face-saving compromise, not because they believed any existed.
This has not stopped the Department of Defense from claiming that constitutional exceptions to the law exist. The Department has long claimed that the Constitution implicitly gives military commanders “emergency authority” to unilaterally use federal troops “to quell large-scale, unexpected civil disturbances” when doing so is “necessary” and prior authorization by the president is impossible. In the past, the department also claimed an inherent constitutional power to use the military to protect federal property and functions when local governments could not or would not do so. The validity of these claimed authorities has never been tested in court.
What are the weak points in the Posse Comitatus Act?
Events in 2020 and 2021 have highlighted two loopholes in the Posse Comitatus Act. The first involves the District of Columbia National Guard. Unlike all other state and territorial National Guards, the DC Guard is always under presidential control. Despite this, the Department of Justice has for years asserted that the DC Guard can operate in a non-federal, “militia” status, in which it is not covered by the Posse Comitatus Act. By this interpretation, presidents can use the DC Guard for law enforcement whenever they choose.
Another weakness in the Posse Comitatus Act arises from the law that allows the National Guard to operate in “Title 32 status.” In Title 32 status, a middle ground between purely state operations and federalization, Guard personnel are paid with federal funds and may perform missions requested by the president, but they remain under state command and control. That means they are not subject to the Posse Comitatus Act, even though they are serving federal interests.
How have these loopholes in the Posse Comitatus Act been exploited?
In the summer of 2020, President Trump deployed the DC National Guard into Washington to police mostly peaceful protests against law enforcement brutality and racism. Simultaneously, over the objections of DC’s mayor, the administration asked state governors to deploy their own Guard personnel into Washington in Title 32 status, and 11 governors did so. Although these out-of-state forces were nominally under their governors’ control, it was later revealed that they were reporting up through the DC Guard’s chain of command for “coordination” purposes. That meant they were ultimately taking orders from the president. In this way, the Trump administration brought a large, federally controlled military force into Washington and used it for civilian law enforcement, all while skipping over the procedures in the Insurrection Act and evading the political costs of invoking it. That is exactly what the Posse Comitatus Act is meant to prevent.
Moreover, the deployment of non-federalized, out-of-state Guard forces into a jurisdiction without its consent represents another threat to the Posse Comitatus Act. When operating in Title 32 status, Guard forces are exempt from the Posse Comitatus Act because they are under state command and control. A key part of that control is the governor’s right to decline a particular federal mission. That right is meaningless if the president can simply approach a different governor and ask her to deploy her state’s Guard into the unwilling governor’s state. In this scenario, the cooperating governor becomes a fig leaf for the president to use the military as a police force anywhere in the country, free from the constraints of the Posse Comitatus Act.
How should the Posse Comitatus Act be reformed?
Congress should pass three reforms to help close these loopholes in the Posse Comitatus Act. First, it should transfer control over the DC National Guard from the president to the mayor of Washington. The president would still be able to take command of the DC Guard when necessary by federalizing it, but it would then be subject to the Posse Comitatus Act, just like all other federally controlled military forces.
Second, Congress should clarify that governors may not send their National Guard forces into another state or territory without the latter jurisdiction’s consent. This will stop future presidents who want to use the military domestically, but do not want to follow the laws established by Congress, from going from governor to governor until they find one who is willing to do their dirty work.
Third, Congress should enact a law clarifying that the Posse Comitatus Act applies to National Guard forces whenever they report through a federal chain of command, regardless of whether they have officially been called into federal service. This will ensure that form is not elevated over substance and will more fully realize the principle behind the law.
The Posse Comitatus Act Explained
The law generally prevents the president from using the military as a domestic police force.
“A federal judge has blocked federal election officials from enforcing Trump’s executive order forcing states to apply citizenship requirements, saying it imposes significant burdens and would harm eligible voters,” according to an X post from Politico Senior legal affairs reporter Kyle Cheney
The block is a major blow to the Trump administration. In the executive order, Trump wanted to add new requirements for people to vote.
This includes asking for ID or any sort of documentation to prove your citizenship and ensure all mail ballots are received by Election Day.
Want more breaking political news? Click for the latest headlines at Raw Story.
The White House has previously called these requirements “common sense.” They also believe any objection from the left is “insane.”
“The Trump administration is standing up for free, fair, and honest elections, and asking this basic question is essential to our Constitutional Republic,” White House spokesperson Harrison Fields said in a statement when the executive order was released.
'Significant burdens': Judge deals major blow to Trump's new voting requirements
The block is a major blow to the Trump administration. In the executive order, Trump wanted to add new requirements for people to vote.
This includes asking for ID or any sort of documentation to prove your citizenship and ensure all mail ballots are received by Election Day.
Want more breaking political news? Click for the latest headlines at Raw Story.
The White House has previously called these requirements “common sense.” They also believe any objection from the left is “insane.”
“The Trump administration is standing up for free, fair, and honest elections, and asking this basic question is essential to our Constitutional Republic,” White House spokesperson Harrison Fields said in a statement when the executive order was released.
'Significant burdens': Judge deals major blow to Trump's new voting requirements
Judge blocks Trump’s election executive order, siding with Democrats who called it overreach
ATLANTA (AP) — A federal judge on Friday blocked President Donald Trump’s attempt to overhaul elections in the U.S., siding with a group of Democratic state attorneys general who challenged the effort as unconstitutional.
The Republican president’s March 25 executive order sought to compel officials to require documentary proof of citizenship for everyone registering to vote for federal elections, accept only mailed ballots received by Election Day and condition federal election grant funding on states adhering to the new ballot deadline.
The attorneys general had argued the directive “usurps the States’ constitutional power and seeks to amend election law by fiat.” The White House had defended the order as “standing up for free, fair and honest elections” and called proof of citizenship a “commonsense” requirement.
Judge Denise J. Casper of the U.S. District Court in Massachusetts said in Friday's order that the states had a likelihood of success as to their legal challenges.
“The Constitution does not grant the President any specific powers over elections,” Casper wrote.
Casper also noted that, when it comes to citizenship, “there is no dispute (nor could there be) that U.S. citizenship is required to vote in federal elections and the federal voter registration forms require attestation of citizenship.”
Casper also cited arguments made by the states that the requirements would “burden the States with significant efforts and substantial costs” to update procedures.
Messages seeking a response from the White House and the Department of Justice were not immediately returned. The attorneys general for California and New York praised the ruling in statements to The Associated Press, calling Trump's order unconstitutional.
“Free and fair elections are the foundation of this nation, and no president has the power to steal that right from the American people," New York Attorney General Letitia James said.
The ruling is the second legal setback for Trump’s election order. A federal judge in Washington, D.C., previously blocked parts of the directive, including the proof-of-citizenship requirement for the federal voter registration form.
The order is the culmination of Trump’s longstanding complaints about elections. After his first win in 2016, Trump falsely claimed his popular vote total would have been much higher if not for “millions of people who voted illegally.” Since 2020, Trump has made false claims of widespread voter fraud and manipulation of voting machines to explain his loss to Democrat Joe Biden.
He has said his executive order secures elections against illegal voting by noncitizens, though multiple studies and investigations in the states have shown that it's rare and typically a mistake. Casting a ballot as a noncitizen is already against the law and can result in fines and deportation if convicted.
President Donald Trump speaks during the congressional picnic on the South Lawn of the White House, Thursday, June 12, 2025, in Washington. (AP Photo/Alex Brandon)© The Associated Press
Also blocked in Friday's ruling was part of the order that sought to require states to exclude any mail-in or absentee ballots received after Election Day. Currently, 18 states and Puerto Rico accept mailed ballots received after Election Day as long they are postmarked on or before that date, according to the National Conference of State Legislatures.
Oregon and Washington, which conduct their elections almost entirely by mail, filed a separate lawsuit over the ballot deadline, saying the executive order could disenfranchise voters in their states. When the lawsuit was filed, Washington Secretary of State Steve Hobbs noted that more than 300,000 ballots in the state arrived after Election Day in 2024.
Trump’s order has received praise from the top election officials in some Republican states who say it could inhibit instances of voter fraud and will give them access to federal data to better maintain their voter rolls. But many legal experts say the order exceeds Trump’s power because the Constitution gives states the authority to set the “times, places and manner” of elections, with Congress allowed to set rules for elections to federal office. As Friday's ruling states, the Constitution makes no provision for presidents to set the rules for elections.
New York attorney general Letitia James is seen after the New York City Democratic Mayoral Primary Debate at the John Jay College of Criminal Justice in the Gerald W. Lynch Theater on Thursday, June 12, 2025 in New York City. (Vincent Alban/The New York Times via AP, Pool)© The Associated Press
During a hearing earlier this month on the states’ request for a preliminary injunction, lawyers for the states and lawyers for the administration argued over the implications of Trump’s order, whether the changes could be made in time for next year’s midterm elections and how much it would cost the states.
Justice Department lawyer Bridget O’Hickey said during the hearing that the order seeks to provide a single set of rules for certain aspects of election operations rather than having a patchwork of state laws and that any harm to the states is speculation.
O’Hickey also claimed that mailed ballots received after Election Day might somehow be manipulated, suggesting people could retrieve their ballots and alter their votes based on what they see in early results. But all ballots received after Election Day require a postmark showing they were sent on or before that date, and that any ballot with a postmark after Election Day would not count.
Christina A. Cassidy, The Associated Press
ATLANTA (AP) — A federal judge on Friday blocked President Donald Trump’s attempt to overhaul elections in the U.S., siding with a group of Democratic state attorneys general who challenged the effort as unconstitutional.
The Republican president’s March 25 executive order sought to compel officials to require documentary proof of citizenship for everyone registering to vote for federal elections, accept only mailed ballots received by Election Day and condition federal election grant funding on states adhering to the new ballot deadline.
The attorneys general had argued the directive “usurps the States’ constitutional power and seeks to amend election law by fiat.” The White House had defended the order as “standing up for free, fair and honest elections” and called proof of citizenship a “commonsense” requirement.
Judge Denise J. Casper of the U.S. District Court in Massachusetts said in Friday's order that the states had a likelihood of success as to their legal challenges.
“The Constitution does not grant the President any specific powers over elections,” Casper wrote.
Casper also noted that, when it comes to citizenship, “there is no dispute (nor could there be) that U.S. citizenship is required to vote in federal elections and the federal voter registration forms require attestation of citizenship.”
Casper also cited arguments made by the states that the requirements would “burden the States with significant efforts and substantial costs” to update procedures.
Messages seeking a response from the White House and the Department of Justice were not immediately returned. The attorneys general for California and New York praised the ruling in statements to The Associated Press, calling Trump's order unconstitutional.
“Free and fair elections are the foundation of this nation, and no president has the power to steal that right from the American people," New York Attorney General Letitia James said.
The ruling is the second legal setback for Trump’s election order. A federal judge in Washington, D.C., previously blocked parts of the directive, including the proof-of-citizenship requirement for the federal voter registration form.
The order is the culmination of Trump’s longstanding complaints about elections. After his first win in 2016, Trump falsely claimed his popular vote total would have been much higher if not for “millions of people who voted illegally.” Since 2020, Trump has made false claims of widespread voter fraud and manipulation of voting machines to explain his loss to Democrat Joe Biden.
He has said his executive order secures elections against illegal voting by noncitizens, though multiple studies and investigations in the states have shown that it's rare and typically a mistake. Casting a ballot as a noncitizen is already against the law and can result in fines and deportation if convicted.
President Donald Trump speaks during the congressional picnic on the South Lawn of the White House, Thursday, June 12, 2025, in Washington. (AP Photo/Alex Brandon)© The Associated Press
Also blocked in Friday's ruling was part of the order that sought to require states to exclude any mail-in or absentee ballots received after Election Day. Currently, 18 states and Puerto Rico accept mailed ballots received after Election Day as long they are postmarked on or before that date, according to the National Conference of State Legislatures.
Oregon and Washington, which conduct their elections almost entirely by mail, filed a separate lawsuit over the ballot deadline, saying the executive order could disenfranchise voters in their states. When the lawsuit was filed, Washington Secretary of State Steve Hobbs noted that more than 300,000 ballots in the state arrived after Election Day in 2024.
Trump’s order has received praise from the top election officials in some Republican states who say it could inhibit instances of voter fraud and will give them access to federal data to better maintain their voter rolls. But many legal experts say the order exceeds Trump’s power because the Constitution gives states the authority to set the “times, places and manner” of elections, with Congress allowed to set rules for elections to federal office. As Friday's ruling states, the Constitution makes no provision for presidents to set the rules for elections.
New York attorney general Letitia James is seen after the New York City Democratic Mayoral Primary Debate at the John Jay College of Criminal Justice in the Gerald W. Lynch Theater on Thursday, June 12, 2025 in New York City. (Vincent Alban/The New York Times via AP, Pool)© The Associated Press
During a hearing earlier this month on the states’ request for a preliminary injunction, lawyers for the states and lawyers for the administration argued over the implications of Trump’s order, whether the changes could be made in time for next year’s midterm elections and how much it would cost the states.
Justice Department lawyer Bridget O’Hickey said during the hearing that the order seeks to provide a single set of rules for certain aspects of election operations rather than having a patchwork of state laws and that any harm to the states is speculation.
O’Hickey also claimed that mailed ballots received after Election Day might somehow be manipulated, suggesting people could retrieve their ballots and alter their votes based on what they see in early results. But all ballots received after Election Day require a postmark showing they were sent on or before that date, and that any ballot with a postmark after Election Day would not count.
Christina A. Cassidy, The Associated Press
A federal judge in San Francisco on Friday stopped Secretary of State Marco Rubio from proceeding with plans to downsize the State Department, saying that it was prohibited behavior under an injunction she issued last month.
U.S. District Judge Susan Illston barred the Republican administration from carrying out much of its plans to reorganize and slash departments while she hears a legal challenge brought by labor unions and others. She said that President Donald Trump had failed to seek Congressional cooperation to do so when he ordered government-wide cuts.
But, in late May, the State Department notified Congress of an updated reorganization of the agency that would cut programs and personnel even more deeply than previously revealed.
Rubio this week also ordered U.S. embassies to fire all remaining staffers with the U.S. Agency for International Development. He said the State Department will take over USAID’s foreign assistance programs by Monday.
The Trump administration said Rubio had launched a reorganization of the State Department independently of the president's directive and so was exempt.
Illston, who was nominated to the bench by former President Bill Clinton, a Democrat, was not convinced.
“If the State Department has any question about whether planned actions fall within the scope of the Court’s injunction, the Court ORDERS the Department to first raise those questions with the Court before taking action,” she wrote in an order issued Friday.
Judge blocks State Department from firing workers while injunction is in effect
U.S. District Judge Susan Illston barred the Republican administration from carrying out much of its plans to reorganize and slash departments while she hears a legal challenge brought by labor unions and others. She said that President Donald Trump had failed to seek Congressional cooperation to do so when he ordered government-wide cuts.
But, in late May, the State Department notified Congress of an updated reorganization of the agency that would cut programs and personnel even more deeply than previously revealed.
Rubio this week also ordered U.S. embassies to fire all remaining staffers with the U.S. Agency for International Development. He said the State Department will take over USAID’s foreign assistance programs by Monday.
The Trump administration said Rubio had launched a reorganization of the State Department independently of the president's directive and so was exempt.
Illston, who was nominated to the bench by former President Bill Clinton, a Democrat, was not convinced.
“If the State Department has any question about whether planned actions fall within the scope of the Court’s injunction, the Court ORDERS the Department to first raise those questions with the Court before taking action,” she wrote in an order issued Friday.
Judge blocks State Department from firing workers while injunction is in effect
