Read Will Scharf’s Confidential Insurrection Act Memo

to “indirect assistance” or “permissible direct assistance.” Among these, most notably, are statutes dealing with transnational organized crime and international counterdrug efforts.

3. The Insurrection Act

A. Statutory Provisions

The most far-reaching legal exceptions to the Posse Comitatus Act, though, fall within the Insurrection Act. The Insurrection Act, 10 U.S.C. §§251-255, originally enacted in 1807, is a statute that, when invoked, provides the President with extraordinary powers to use the military in several distinct domestic contexts, if the President first “by proclamation” orders “the insurgents to disperse”:

First, in the event of an insurrection in any state against its government, the President, at the request of a state legislature or governor, can use the military to suppress the insurrection. 10 U.S.C. § 251.

Second, in the event that unlawful acts “make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings,” the President can use the military to enforce the law and suppress the rebellion. 10 U.S.C. § 252.

Third, in the event of “any insurrection, domestic violence, unlawful combination, or conspiracy” that makes enforcing the law impossible, or that results in any class of people being deprived of their rights, and which state authorities are unable or unwilling to resolve, the President can use the military to resolve the insurrection. 10 U.S.C. § 253(1).

And lastly, wherever any such “insurrection, domestic violence, unlawful combination, or conspiracy… opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws,” the President may use the military to resolve the insurrection. 10 U.S.C. § 253(2).

B. Implications and Usage

While § 251 is cabined by the requirement for a request from state officials, the § 252 and § 253 authorities are incredible broad, allowing for essentially unbounded use of the military in any state, with or without state consent or acquiescence, with the only predicate being a Presidential proclamation declaring that an insurrection exists.

Many Presidents have invoked the Insurrection Act throughout American history. Abraham Lincoln invoked the Insurrection Act at the outset of the Civil War (indeed, the prosecution of the Civil War can be viewed as one long deployment of the military under the Act). Ulysses S. Grant similarly invoked the Insurrection Act during his suppression of the first Ku Klux Klan in the 1870s. In the late 1800’s, the Insurrection Act was invoked on a number of occasions to deal with labor strife. And perhaps most notably in recent history, three Presidents invoked the

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