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I will confess that I had never heard of the Insurrection Act of 1807 until this last week. Apparently (and I am not a lawyer) the Act gives the US President the right to send active military troops at the request of a state governor to put down an insurrection. Hawa Allan has written a short essay on the Act for The Baffler. The Act has a sordid history since the primary insurrection that the Congress worried about in 1807 was a slave insurrection. Allan convincingly demonstrates the the Act is integrally wrapped up in the desire of slaveholders to ensure that slaves would always be kept under control and how that dynamic persists to the present day. It has been used on several occasions since that time, the most recent time being the Federal response to the Los Angeles riots in 1992. Allan writes:

“Though hardly common knowledge, the law happens to be the linchpin of several iconic events in African American history. Its invocation is enmeshed with this country’s long history of racial injustice: ‘insurrection’ has been defined, in practice, as either rebellion against slave power or ongoing racial injustice, or as resistance to federal laws mandating civil rights and integration. Radical Republicans attempted to use federal military power to quell white resistance in the South during Reconstruction. In the 1950s and 1960s, federal forces were called in to enforce the desegregation of public schools in Arkansas, Alabama, and Mississippi. But it has also been used to meet urban unrest in the 1960s—in Baltimore, Chicago, and Washington, D.C., after the assassination of Martin Luther King Jr.

“Though the Act has not been formally invoked since President George H.W. Bush deployed federal troops to Los Angeles in 1992, it has emerged as a legal facet in other more recent events in black history. In 2005, black residents stranded in the immediate aftermath of Hurricane Katrina in New Orleans were reimagined by the media and law enforcement with graphic violence—specifically, as rooftop snipers and perpetrators of pedophilic rape. Five years later, in 2010, the New York Times reported in retrospect that it was white vigilantes attacking black hurricane victims who were, in fact, the chief perpetrators of violence. As the Times further reported: ‘The narrative of those early, chaotic days—built largely on rumors and half-baked anecdotes—quickly hardened into a kind of ugly consensus: poor blacks and looters were murdering innocents and terrorizing whoever crossed their path in the dark, unprotected city.'”

The recent statements by former and active military officers opposing the invocation of the Insurrection Act testify to the reluctance of military commanders to use force against fellow citizens, even though the Rules of Engagement for domestic operations are quite strict. Most of the active US military troops have left the protest areas in Washington, DC so it does not appear as if President Trump intends to invoke the Insurrection Act right now. But the protests are likely to continue and much depends on how they will evolve as will the police response to those protests.