President Donald Trump said on Monday that he’s considering using the Insurrection Act of 1807 to deploy the military against those protesting the brutal murder of George Floyd, an unarmed black man, at the hands of Minneapolis police on May 25. Trump said in the Rose Garden, “If a city or a state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve problem for them.”
Though it would be a scary move on Trump’s part, it’s also perhaps a desperate one, suggesting that he knows he has lost control of the American people. Trump has long been a fanboy of dictators, and his rallies have always dabbled in the aesthetics of fascism, but in these (let’s hope) final months of his presidency, using the military against protesters — especially without the consent of state and local governments — would be a newly authoritarian step for him.
The Insurrection Act was passed more than two centuries ago, and in theory, it would allow the president to get around the provisions of the later Posse Comitatus Act of 1878, which bars the government from using the military as a police force. Thomas Jefferson drafted it because former vice president Aaron Burr was allegedly plotting to overthrow the US government. Burr was arrested in Alabama before the act passed, rendering it irrelevant for its conceived purpose. Since then, it’s been used infrequently.
In the twentieth century, the Insurrection Act was sometimes evoked to protect black Americans’ civil rights; both John F. Kennedy and Dwight D. Eisenhower used it this way, in Kennedy’s case several times. Subsequent US presidents, however, have been more inclined to use the act to quash rebellions by black people protesting racist violence. It was used in 1968 during riots provoked by the assassination of Martin Luther King, Jr, and in 1992 when Los Angeles rioted in rage over the beating of Rodney King. George H. W. Bush also used the Insurrection Act in 1989, in the aftermath of Hurricane Hugo, to crack down on looting in St. Croix in the US Virgin Islands — having found that local police and National Guard troops, rather than keeping order, had joined in the fun.
If Trump uses the Insurrection Act now, it would be its first invocation this century.
Courts have previously ruled that the Insurrection Act can’t be used without the consent of the states involved, and in this case, the states are objecting loudly. The governors of Michigan, Illinois, and New York have denounced the idea. New York attorney general Letitia James tweeted on Monday, “President Trump is not a dictator & he doesn’t have the right to unilaterally deploy U.S. military across American states.” James vowed to take him to court if he tries, and other states will surely do the same. The protests enjoy broad public support.
Yet the Democrats aren’t exactly rejecting authoritarianism. Though they don’t want Trump to infringe on their powers, their own respect for the right to protest hasn’t been impressive. New York has declared a curfew of 8 p.m. this week, a shocking move in the city that never sleeps, and we aren’t alone: curfews been imposed in at least forty-two cities and twenty-four states this week.
Because of the protests — and only because of the protests — everyone is talking about the awful murder of George Floyd, racism in America, and the need to end the regimes of policing and incarceration that plague black working-class communities. Americans are becoming “ungovernable,” to use Frances Fox Piven’s term, and that’s good. Trump is overstepping here, and the move will probably backfire on him. Still, the fact that the president is trying to expand his powers in a moment of extreme crisis and class war should alarm everyone. We need a plan for the counterattack.