Written by Ritik Tyagi
National Law University, Jodhpur
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
The George Floyd protests in the United States of America began following the death of a 46-year old black man, George Floyd, after Derek Chauvin, a white police officer knelt on Floyd’s neck for about nine minutes during an arrest. The arrest was made based on the suspicion that Floyd used a counterfeit $20 bill for payment at a store (Higham, 2020). This led to protests, marches, and demonstrations across the country against police brutality and racism towards the black community of the United States beginning on the 26th of May, 2020. With a history of police brutality and poor efficiency in dealing with ethnic tensions, the US government seems to be ignoring these experiences as President Trump threatens to use the slavery-era law, the Insurrection Act of 1807 to handle the violent protests.
Before addressing the previous invocations of this law, which is one of the four exceptions to the Posse Comitatus Act of 1878, the various dynamics of this Act are needed to be understood.
The United States Constitution actively bans the U.S. military from conducting law enforcement on U.S. soil. However, active-duty military troops can be ordered to protect life, property and maintain order as per the Stafford Act. The Stafford Act authorizes the use of the military specifically for disaster relief. The Posse Comitatus Act of 1878 prohibits the deployment of active-duty troops on U.S. soil for routine activities as that of the police force. But there are four statutory exceptions to the Posse Comitatus Act 1878, i.e. when the military can be used for domestic law enforcement. One of the four exceptions is the Insurrection Act, 1807.
The Insurrection Act of 1807 was originally signed by Thomas Jefferson and it has been amended over the years. It states:
“Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened send in military troops”( 10 U.S.C. Section 251)
Thus, for an invocation of the Act, the President would either need to request the legislature or require the support of his governors. However, due to the provision of a law passed in 1956, the President has the power to act unilaterally, i.e:
“Whenever the President considers unlawful obstructions, combinations, or assemblages or rebellion against the authority of the United States, make it impracticable to enforce the laws…in any State, …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..” ( 10 U.S.C. Section 252)
This act provides for the federal deployment of military force to suppress the insurrections in three circumstances which are:
Federal aid to state governments.
Use of Militia and Armed Forces to Enforce Federal Authority
Interference with States and Federal Law.
Before invoking the act, the President as per Section 334 of the Insurrection Act needs to issue a proclamation calling on the insurgents to disperse. Thus, as per section 334 of the Insurrection Act: “Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time.”
The 213-year-old legislation has a history of being invoked to suppress racial conflicts. The last time it was invoked to suppress racial tensions was in 1992. Riots erupted in Los Angeles in 1992 after four white Los Angeles Police Department (L.A.P.D.) officers who brutally beat up an unarmed Rodney King (a black American) who was initially evading arrest for drunk driving, were acquitted. The act was also invoked when deadly riots broke out between police and residents due to the assassination of Martin Luther King Jr. in 1968. (Kryder, 2018)
The George Floyd incident can be related to the Rodney King incident. Keeping in mind the consequences of the Rodney King incident, it was not wise for the U.S. government to invoke the Insurrection Act, 1807 for suppressing the ongoing protests as doing so has caused more harm with damage to life and property. With looting and rioting incidents similar to the Rodney King incident being reported (Wagner, 2020), the U.S. government needs to think twice before enacting any such legislation which violates the rights of those protesting peacefully. Also, it is neither practical nor humane to use a force such as the military which isn’t in particular trained to deal with civil unrest.
The government also needs to keep in mind that in light of the COVID-19 outbreak in the country since January 20, 2020, many Americans are already unemployed, running out of their savings, food, and have rents to pay. The government’s incompetency in handling the COVID-19 crisis has frustrated the citizens (Solis, 2020).
Under such circumstances and the pandemic at the backdrop of it, such a hostile response by the government towards the peaceful protesters results only in a further division between the citizens and the government in an already divided America.
Thus, acknowledging its history, the U.S. government needs to approach this situation in a more peaceful way so as to not cause any more deaths and loss of property worth billions which are bound to increase if the military is posted in the U.S. states. They should keep the UN peacekeeping forces as a model. It is time for the U.S. government to introduce some significant legislation so as to provide some relief for centuries of racial discrimination and oppression, after all, black lives do matter.
Higham (2020) “George Floyd death: what did George Floyd do to get arrested. https://www.express.co.uk/news/world/1289773/George-Floyd-death-what-did-George-Floyd-do-to-get-arrested-black-lives-matter-protests
Jacobs, Ronald N (1996) “Civil Society and Crisis: Culture, Discourse, and the Rodney King Beating.” American Journal of Sociology, vol. 101, no. 5, 1996, pp. 1238–1272. JSTOR, www.jstor.org/stable/2782354.
Kryder (2018) “1968 riots: Four days that reshaped Washington D.C.” https://www.washingtonpost.com/graphics/2018/local/dc-riots-1968/
Shapira, Ian (2020), The Washington Post, For 200 years, the Insurrection Act has given presidents the power to deploy the military to quell unresthttps://www.washingtonpost.com/history/2020/06/03/insurrection-act-trump-history/
Solis (2020) “Americans not pleased with Trump Administration Handling of Pandemic” https://www.courthousenews.com/americans-not-pleased-with-trump-administration-handling-of-pandemic/
Wallenfeldt, Jeff (2020), Los Angeles Riots of 1992, ENCYCLOPAEDIA BRITANNICA https://www.britannica.com/event/Los-Angeles-Riots-of-1992
Wagner, Dennis (2020) “Peaceful protests got hijacked” https://www.usatoday.com/story/news/2020/06/15/criminals-used-george-floyd-protests-cover-looting-police-say/5324881002/