An Insurrection Act for the 21st Century

What Should a Modern Insurrection Act Say?

An Insurrection Act for the 21st Century should say something like what we've laid out below.

The draft bill is a long (there are lots of moving parts), but here are the key things we need:

The President should have to consult with state officials before deploying troops.
The Attorney General and the head of the FBI should have to certify, in writing, that deploying troops is necessary to enforce important aspects of federal law.
The President should have to issue a written order of deployment that explains: (a) why state law enforcement can't handle the problem; (b) the underlying cause of the civil disorder; (c) the specific mission of the troops; (d) where, specifically they will be deployed; and (e) when, specifically (no more than a week in the future) the troops must be withdrawn.
The courts can hear immediate legal challenges from anybody affected - including Senators and Representatives from the state where the troops are sent - as to the lawfulness of the deployment under the standards of the (new) law.
The press must have an absolute right to be present in any area where troops are deployed within the United States.

There are lots of details. And every detail reflects a judgment about how to handle some aspect of the real-world problem of using federal troops to deal with civil disorder.

Disagree with something? Have a better way to say it?

Go to the "Comments" page and let us know what you think.

A Bill for An Act Entitled The “Domestic Use of Armed Forces Act of 2020”

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that:

Section 1:

A new Chapter 11A is hereby added to Title 10 of the United States Code, to read as follows:

“Section 242. Findings and statement of purpose.

(a) The Constitution gives Congress the power to “make rules for the government and regulation of” the armed forces of the United States; to “provide for calling forth” the militia, now known as the National Guard; and for “governing such part of them as may be employed in the service of the United States.”

(b) The Constitution obliges Congress to guarantee to each state a republican form of government, and a state of severe and persistent civil disorder which a state is unable or unwilling to suppress, is inconsistent with such form of government.

(c) The use of the armed forces to establish or maintain civil order and/or to enforce federal law has been over the nation’s history, and should forever be, limited, infrequent and unusual.

(d) As of the date of enactment of this Act, there are no situations or circumstances present within the United States that warrant or justify the use of the armed forces to establish or maintain civil order or to perform any law enforcement functions other than as contemplated by [10 U.S.C. §§ 271-284], and any law or executive action purporting to declare such situations or circumstances to exist is hereby declared null and void.

(e) Considering the foregoing, the purposes of this Act are:

(1) To clarify and standardize the rules governing the use of the armed forces within the United States;

(2) To require prompt and accurate reporting to Congress and the public regarding the nature and scope of any use of the armed forces within the United States;

(3) To ensure that all citizens of the United States who may be affected by the domestic use the armed forces have effective access to the courts to ensure that such use is in accordance with law.

“Section 243. Armed Forces to be Used Only in Accordance with This Chapter; General Rules

(a) General Rules.

(1) Notwithstanding any other provision of law, the armed forces shall not be deployed or used within the United States except as provided in this Chapter.

(2) Notwithstanding any other provision of law, and except as expressly provided in this Chapter, the armed forces shall be used within the United States to establish or maintain civil order only where a state of civil disorder as defined in this Chapter has existed within an identified geographic region within a state for a period of not less than three (3) consecutive days, during which time the state government shall have been unable or unwilling to establish or maintain civil order within the affected area.

(3) Cyberattacks and/or cyberwarfare against the United States, not accompanied by a physical invasion of the geographic territory of the United States by foreign armed forces or by insurrectionary forces with capabilities akin to armed forces, shall not constitute a valid justification for deploying the armed forces within the United States where such deployment is not otherwise justified in accordance with this Chapter.

(4) Every deployment of the armed forces within the United States without exception, including without limitation deployments to address the situations identified below, shall be subject to the requirements of this Chapter:

(A) The provision of humanitarian or similar support following a natural or man-made disaster (such as hurricanes, flooding, fires, or chemical explosions), including activities authorized by [cite US Code].

(B) Actions to enforce a public health quarantine or other public health emergency, including activities authorized by [cite US Code].

(D) Actions to respond to the actual or threatened use of a weapon of mass destruction, including activities authorized by [cite US Code].

(E) [Add cross-reference to other code provisions expressly authorizing the use of troops]

(5) Press Access Guaranteed. In all cases, without exception, where the armed forces are deployed within the United States to establish or maintain civil order or to assist in the enforcement of federal law, any member of the press shall be permitted unrestricted, unescorted access to the area(s) where the armed forces are deployed, and shall be permitted to report on the activities of the armed forces; provided, however, that neither the United States nor any officer, employee or agent of the United States acting in furtherance of his duties, shall have any liability for any loss, damage, injury, or death of any such member of the press, except in cases where such loss, damage, injury or death was the direct result of willful and intentional misconduct by such officer, employee, or agent directed at such member of the press.

(6) Emergency Situations.

(A) If the President reasonably determines that all or a significant portion of a state is experiencing a dire emergency that creates or threatens to create civil disorder beyond the scope of disorder the United States has experienced since April 1865, the President may deploy the armed forces within the United States as necessary to restore civil order in response to the dire emergency, subject to any other applicable law.

(B) As soon as practicable following the onset of such a dire emergency, but no later than three (3) days thereafter, the President shall prepare and publish a written order materially in compliance with the requirements of Section 247. As of the fourth (4th) day following the onset of the dire emergency, the provisions of Section 248 shall apply irrespective of whether the President has complied with Section 247.

(C) No later than seven (7) days following the initial deployment of the armed forces in response to a dire emergency, all armed forces shall be withdrawn from the affected area(s) unless the President issues an order of deployment under Section 247, in accordance with the requirements of this Chapter.

(D) For purposes of this subsection, a “dire emergency that creates or threatens to create civil disorder beyond the scope of disorder the United States has experienced in the past” includes an attack by foreign armed forces on the territory of one or more states or an organized attack by an insurrectionary force with capabilities similar to those of the armed forces; but does not include immigration (whether lawful, unlawful, and/or in pursuit of asylum); geographically isolated incidents of rioting or other civil disorder; increases in the incidence of violent or other crime (whether sudden or gradual); or increases in protests or other actions by the people exercising their rights under the First Amendment, even if such protests are accompanied by violent or other crime.

(b) No Use of Funds. Following the date of enactment of this Chapter, no funds of the United States shall be used to cover the cost of, or to directly or indirectly support, any deployment, use, or engagement of the armed forces within the United States that is not in accordance with the provisions of this Chapter.

“Section 244. Deployment based on a Request from a State

(a) Request for assistance from state government. A state may request assistance from federal armed forces to establish or maintain civil order. Any such request shall be in writing and shall be signed by: (1) the Legislature of the state or, (2) the Governor of the state, or (3) if the Governor is unavailable, the Lieutenant Governor or such other official who is authorized by the constitution of the state to act for the Governor when the Governor is unavailable; and, in each case, (4) the commanding officer of the state’s highest police force.

(b) Contents of request for assistance. A request for assistance under this section shall contain:

(1) A certification that civil order has broken down within the state, as of a specified date, including an identification of the geographic region within which civil order has broken down, stated with as much precision as is reasonably possible in the circumstances.

(2) A certification that local and state law enforcement agencies and officers, and the state’s National Guard, have tried and failed to restore civil order in the specified region, and have been unable to do so for at least three (3) consecutive days.

(3) A description of the nature of the breakdown of civil order and, to the extent that they are known, the causes of the breakdown, including a full description of any asserted grievances of those participating in the civil disorder to the extent those can reasonably be discerned. Without limiting the foregoing, to the extent that the breakdown in civil order arises from, or is attributed by those participating in it to, some action or inaction on the part of any branch of state or federal government, the description shall include an identification of such action or inaction and an explanation of the objections to it.

(d) Consideration of request for assistance. The President shall promptly evaluate and accept or reject, in writing, a request for assistance.

(e) Order to deploy armed forces. If the President determines to deploy the armed forces under this Section, he shall do so by means of a written order meeting the requirements of Section 247.

(f) Judicial Review. The deployment of the armed forces under this Section shall be subject to judicial review as provided for in Section 248.

“Section 245. Deployment based on a State’s Inability or Unwillingness to Maintain Civil Order

(a) Determination that armed forces are needed to address a breakdown of civil order.

(1) If the President receives information reasonably suggesting that civil order has broken down in any substantial part of a state, the President shall promptly seek information regarding the situation from: (a) federal law enforcement officials in the affected area; (b) the Governor of the affected state; and (c) the chief executive of affected units of local government (such as mayor, county executive, or similar officers).

(2) If, after considering all available information, the President concludes that there has been a severe breakdown of civil order in all or a significant part of the state, and that such breakdown has continued for at least three (3) consecutive days, the President may determine to deploy the armed forces to restore civil order within the affected area.

(b) Solicitation of request from the Governor. Prior to deploying the armed forces to restore civil order in any part of a state pursuant to this Section, the President shall contact and advise the Governor of the state that the President plans to deploy the armed forces to restore civil order and shall request that the governor request assistance under Section 244. If the Governor cannot be reached or declines request assistance, and the President concludes that deploying the armed forces is reasonably necessary to restore civil order, he shall do so in accordance with the requirements of this Chapter.

(c) Order to deploy armed forces. If the President determines to deploy the armed forces under this Section, he shall do so by means of a written order meeting the requirements of Section 247.

(d) Judicial Review. The deployment of the armed forces under this Section shall be subject to judicial review as provided in Section 248.

“Section 246. Deployment to Enforce Federal Law

(a) Determination that armed forces are needed to enforce federal law.

(1) If the President receives information reasonably suggesting that enforcement of important aspects of federal law is being materially frustrated in a significant portion of any state, the President shall seek information regarding the situation from: (a) federal law enforcement officials in or responsible for the affected area; and (b) the Governor of the state.

(2) If, after considering all available information, the President concludes that the enforcement of important aspects federal law is being significantly and materially frustrated in any part of a state, the President may determine to deploy the armed forces to assist in the enforcement of federal law within the affected area as provided for in this Section.

(b) Certifications of the Attorney General and the Director of the Federal Bureau of Investigation. The President shall not deploy the armed forces to enforce or assist in the enforcement of federal law unless the President has received, in writing, certifications from the Attorney General and the Director of the Federal Bureau of Investigation required by this subsection.

(1) Before the armed forces may be deployed to enforce or assist in the enforcement of federal law within the United States, the Attorney General shall certify in writing to the President that enforcement of the specific laws sought to be enforced by or with the assistance of the armed forces is a matter of the highest and most urgent national law enforcement priority, with an explanation of both the factual circumstances and the legal or policy considerations that justify that conclusion.

(2) Before the armed forces may be deployed to enforce or assist in the enforcement of federal law within the United States, the Director of the Federal Bureau of Investigation shall certify in writing to the President that conditions within the specified area are such that the normal process of enforcing federal law, including without limitation the transfer of normal law enforcement resources (including, without limitation, personnel of the Federal Bureau of Investigation) from other areas, have been attempted and proven ineffective, and/or are such that it would be unreasonably dangerous to law enforcement officials and/or citizens in the area to attempt to enforce federal law using normal processes, with an explanation of the factual circumstances that justify that conclusion.

(c) Order to deploy armed forces. If the President determines to deploy the armed forces under this Section, he shall do so by means of a written order meeting the requirements of Section 247.

(d) Judicial Review. The deployment of the armed forces under this Section shall be subject to judicial review as provided in Section 248.

“Section 247. Requirements for Order for Deployment

(a) Written order required. No deployment of the armed forces within the United States to restore or maintain civil order or for any law enforcement purpose shall be authorized or occur except by means of a written order of the President in accordance with this Section.

(b) Contents of order of deployment. An order authorizing the deployment of the armed forces within the United States to restore or maintain civil order or for any law enforcement purpose shall contain, at a minimum, the following information:

(1) A statement of the factual basis for the President’s conclusion that there has been a sufficiently severe breakdown of civil order or normal law enforcement activity that intervention by the armed forces is warranted. This statement shall provide a full explanation of relevant facts and shall clearly identify the sources of information on which the President relied in reaching his conclusion..

(2) A certification that the President contacted the Governor of the affected state and (A) advised him that the President was planning to deploy the armed forces to his state and (B) solicited his advice as to whether such deployment was necessary (or, in the case of deployment in response to a request from the Governor, was still necessary). The certification shall expressly state whether the Governor assented to or objected to the deployment. If the President was unable to reach the Governor of the affected state, the certification shall identify the steps the President took to attempt to reach the Governor.

(3) A certification that the President has concluded that normal state and federal law enforcement authorities within the affected state are unable or unwilling to restore or maintain civil order or to perform their duties, as the case may be.

(4) A description in reasonable detail of the causes of the breakdown in civil order and/or normal law enforcement capability, including a full description of any asserted grievances of those participating in the civil disorder to the extent those can reasonably be discerned. Without limiting the foregoing, to the extent that the breakdown in civil order arises from, or is attributed by those participating in it to, some action or inaction on the part of any branch of state or federal government, the description shall include an identification of such action or inaction and an explanation of the objections to it.

(5) A statement describing the mission of the armed forces for the deployment and identifying the specific statutory provision authorizing the use of the armed forces for the specified purpose.

(6) A specification of the geographic region within which the armed forces are authorized to act to restore and maintain civil order, with as much precision as is reasonably possible in the circumstances, including a certification that the geographic region is the smallest region practicable, consistent with the successful accomplishment of the armed forces’ mission, and, in the case of deployment at the request of a Governor, in any case no larger than the geographic area specified by the Governor in his request for assistance.

(7) A specific date, no later than seven (7) days from the date of the order, when the armed forces shall be withdrawn, subject to a renewed order of deployment based on a renewed request from the state or a renewed determination by the President, as the case may be, under this Chapter, based on the facts and circumstances existing at the time of the renewal.

(8) Copies of any certifications or reports from other officials required under this Chapter as a prerequisite to the deployment of the armed forces.

(9) A specific directive to all deployed armed forces that they must at all times on duty wear uniforms with insignia identifying their service, their rank, and their name. Any member of the armed forces failing to adhere to this directive shall be considered to be among the citizenry participating in civil unrest and subject to arrest by either the armed forces or by any civilian law enforcement officer.

(c) Publication. No order authorizing the use of the armed forces to establish or maintain civil order, or to assist with law enforcement, under this Chapter shall be of any force or effect, and no such deployment of the armed forces shall be permitted, until such order is made public as provided in this subsection. To make such an order public within the meaning of this subsection, the President shall provide a copy immediately upon its issuance to the office of each member of Congress, to all major national press outlets, and directly to the public via the White House website. Thereafter the President shall arrange to make a copy in physical or electronic form available to any person upon request.

“Section 248. Judicial Review

(a) Jurisdiction of federal courts. The courts of the United States shall have jurisdiction to review and determine the lawfulness of any deployment of the armed forces within the United States.

(b) Who may bring suit. Congress finds that the unlawful or unnecessary deployment of the armed forces within the United States is a direct impingement on the rights and freedoms of all United States residents directly or indirectly subjected to or affected by such deployment. A suit challenging the lawfulness of a deployment of the armed forces within the United States may be brought by (1) any resident or citizen of any state within which the armed forces have been or are being deployed and/or (2) any resident of the United States whose principal place of residence or employment is within one hundred miles of the area within which the armed forces have been or are being deployed. For purposes of this section, each Representative representing any portion of an affected state, and each Senator from an affected state, shall be conclusively presumed to be a resident and citizen of such state directly affected by such deployment, and shall be entitled to bring a suit challenging the lawfulness of a deployment of the armed forces within the state that the Representative or Senator, as the case may be, represents.

(c) Where suit may be brought. Notwithstanding any other provision of law, a suit challenging the lawfulness of a deployment of the armed forces within the United States may be brought in (1) any federal district court in the state within which the armed forces have been or are being deployed; (2) any federal district court in any geographically adjacent state; or (3) if there are no geographically adjacent states, or no geographically adjacent states where federal district courts are open and functioning normally, in any federal district court.

(d) Relief available. The plaintiff in a suit under this Section may seek and, if warranted by the facts, obtain, a declaration that the deployment at issue is unlawful, and, if the deployment is found to be unlawful, an injunction requiring the immediate withdrawal of the armed forces.

(e) Substantive requirements to obtain relief. The court shall receive evidence concerning: (1) whether the deployment of the armed forces was justified by the existence of severe civil disorder and/or by a need to enforce important federal law or assist in law enforcement, in accordance with the terms of this Chapter, and (2) whether the President complied with the procedural, notice, and publication requirements of this Chapter. If the court finds that deployment was not justified under the terms of this Chapter, then the court shall declare the deployment to be illegal and shall immediately issue an injunction requiring its termination. If the court finds based on the evidence that deployment was justified under the terms of this Chapter, then the court shall declare the deployment to be legal. Immaterial deviations from the requirements of this Chapter regarding procedures, notice, and publication shall not be grounds for declaring a deployment illegal.

(f) Trials of cases under this section have priority. All cases brought under this section shall be immediately heard by the court and shall take priority on the court’s docket over any and all other matters pending before it.

(g) Appeals of rulings under this section. The court of appeals for the circuit within which the district court hearing any case under this section is located shall have jurisdiction to consider any appeal by a non-prevailing party from a ruling of a district court declaring a deployment of the armed forces to be legal or illegal, as the case may be, and from any order issuing or denying any injunction regarding such deployment. Any such appeal shall be heard immediately by the court of appeals on an emergency basis and shall take priority on such court’s docket over any and all other matters pending before it. A court of appeals shall waive any of its procedural rules as appropriate in order to promptly and efficiently consider the merits of any such appeal.

(h) Supreme Court review. A non-prevailing party in a court of appeals in a case brought under this section may seek review of that court’s ruling on an expedited basis in the Supreme Court, which shall have jurisdiction to review all determinations of fact or law by the lower courts. The Supreme Court shall handle any such appeal on an immediate, emergency basis. The Supreme Court’s review of legal questions shall be de novo. The Supreme Court shall consider factual determinations by the lower courts using whatever standard of review, including at its discretion de novo receipt of evidence, that it deems appropriate in the circumstances.

(i) Effect of final order that deployment is illegal. Once an order determining that a deployment of the armed forces within the United States was illegal under this Chapter has become final and unappealable, then from the effective date of that order forward, no funds of the United States may be used to pay or defray any costs of that deployment (other than as necessary to withdraw from the deployment), including without limitation the payment of any salaries for any members of the military involved in the deployment and the purchase or use of any supplies used in the course of such deployment, provided, however, that Congress may by later statute choose to permit enlisted members of the armed forces and third-party suppliers to be paid.

(j) Continuing jurisdiction of district court. In any case where a deployment is found to be lawful, the district court shall maintain continuing jurisdiction over the matter until the armed forces have been fully withdrawn, and shall conduct such proceedings as are necessary to confirm from time to time that the continued deployment of the armed forces is lawful under this Chapter.

“Section 249. Definitions

(a) “Armed forces” shall have the meaning set forth in Title 10, Section 101(a).

(b) “Civil order” means the normal state of affairs within the United States with respect to citizens’ compliance with federal and state law and the normal process for enforcement of those laws. A state of civil order exists when state and federal law enforcement officials are performing their duties and the courts are open and functioning. The fact that crimes are being committed and that law enforcement officials are unable to apprehend and punish all or a significant portion of the offenders is and always has been part of the normal process of law enforcement and criminal justice, and does not constitute an absence of civil order.

(c) “Civil disorder” means significant and sustained rioting, looting, attacks on persons, and/or attacks on property. To be “significant and sustained,” the rioting, looting, attacks on persons, and/or attacks on property must involve at least a dozen individuals acting as a group, attacking force, or mob, within a discrete, identifiable area and must continue for a minimum of three (3) consecutive days.

(d) “Law enforcement” or “law enforcement activities” refer to the processes of investigating and prosecuting actual or suspected criminal activity, including patrolling the streets, responding to citizens’ requests for assistance, obtaining information needed to obtain subpoenas or search warrants, obtaining subpoenas or search warrants, conducting searches or seizures (whether or not pursuant to a warrant or other formal process), detaining or arresting persons (whether or not pursuant to a warrant or other formal process), conducting trials (and associated pre-trial and post-trial proceedings), and imprisoning alleged or convicted offenders before or after trial.

(e) “Restoring or enforcing civil order” means quelling or suppressing rioting, looting, attacks on persons, and/or attacks on property of the sort that constitute civil disorder.

(f) “State” shall mean each of the States, the District of Columbia, the United States Virgin Islands, the Commonwealth of Puerto Rico, Guam, American Samoa, and any other territories or possessions of the United States.

(g) [Add any other necessary definitions]

Section 2.

The following provisions of existing law are hereby amended as stated below:

(a) Sections 251 through 255 of Title 10 of the United States Code are hereby repealed.

(b) [add any other necessary “conforming” changes to existing law]

Section 3. Technical amendments and changes.

(a) Sections 251 through 255 of Title 10 of the United States code are renumbered as Sections 256 through 260, respectively.

(b) Sections 246 and 247 of Title 10 of the United States Code are renumbered as Sections 254 and 255, respectively.