What is the Insurrection Law? Brig. Gen. Michael C.H. McDaniel explains
Former Deputy Assistant Secretary for Homeland Defense Strategy and retired Brigadier General Michael C.H. McDaniel, associate dean at Cooley Law School, was sought out by the media to explain how President Donald Trump can use the Insurrection Act to help control riots.
Gen. McDaniel spoke in interviews with 360 Magazine and Michigan’s Big Show with Michael Patrick Shiels, where he explained that the Insurrection Act gives the president the authority to bring in federal military troops if states do not ensure the enforcement of federal law. There has been some public confusion between the Insurrection Act and martial law. McDaniel said that when people talk about martial law, they are usually talking about the Insurrection Act.
“It’s not something that can be done quickly if it’s going to be done,” he told Shiels, noting that the last time the Insurrection Act was used was during the Rodney King riots in 1992 when George HW Bush was president. “I think you really truly have to have a situation where it is out of control. Just trying to prevent looting with federal troops or any sort of armed forces is very difficult. The military is not trained to use restraint and force like law enforcement is – they certainly can do that, but it is not their primary role, and it’s only to be used as a last resort.”
DIPLOMATIC APPROACH FIRST
McDaniel advocated taking a more diplomatic approach first – taking time with negotiations and discussions – similar to the one that President George Washington used during the Whiskey Rebellion of 1794.
“I certainly agree there’s a greater need for empathy and unity,” McDaniel said. “I will say that troops have been used when rioting has gotten out of control many times in our country. But as I’ve said, it should be a last resort.”
When asked whether the president was heavy handed when talking to the nation’s governors, McDaniel responded: “My personal opinion, he was. I would have expected to have heard more words of sympathy for the family of George Floyd. I would have expected to hear more words of unity and trying to bring the country together in such terms instead of going right to the consequences and the potential punitive measures. I would have thought he would have tried to balance that speech a little bit more.”
“There’s a popular misconception that it can only be used like the Stafford Act for emergencies and disasters, but in actuality, the president can invoke it on his own,” he said. “It doesn’t happen as often but there is a section, which says it can be used to enforce the federal laws. So if the president believes that the uprising or assemblage or rebellion makes it impracticable to enforce the laws of the United States in any state in other course of judicial proceedings then it can send in the military to do so.”
THREE PARTS TO INSURRECTION ACT
There are three main parts to the Insurrection Act:
- It can be invoked at the request of a governor or the state legislator when they lack the capacity to subdue or quell a riot or insurrection;
- It can be invoked on the president’s own motion if necessary to enforce federal law or;
- It can be invoked on the president’s own motion or own proclamation if necessary to protect the civil rights of a segment of the population.
“Theoretically, he could do it, but there are findings that would have to be made,” McDaniel said. “He would have to state why the state institution’s law enforcement and National Guard are perhaps unable to enforce the federal law. And if he uses the next section, he would have to state why the civil rights of citizens are being affected and not being protected by the state. So, he would have to make some actual findings, to which I don’t think really apply in any of the states I’ve seen on the news and certainly not in the state of Michigan before he could do so.”
During his interview with WFLA Radio in Tampa Bay, Florida, McDaniel shared that a majority of U.S. citizens are against the idea of the military being used for law enforcement or any domestic purpose within the United States itself.
“When you think about it, we do not want the federal government encroaching into the authorities of the states themselves,” he said. “We’re set up as a nation where the states pre-existed the federal government and the states gave some of their authority to the federal government. So the states are saying we are a matter of dual sovereign and will only allow the federal government to encroach on states’ rights under very limited circumstances.
On WTSP in Tampa, McDaniel said a president enacting the Insurrection Act is an unusual circumstance: “Make no mistake – even though it’s been done two dozen or more times, it’s still a big deal,” he said.
“It’s happened twice, that I can think of in Michigan,” McDaniel told TV 9 &10 Cadillac/Traverse City. “They were both race riots in Detroit in 1943 and 1967.”
McDaniel explained on Newsmax TV’s National Report (@ 2:47:03) that looting, vandalism and violence is not the same as a breakdown in city and state government, which is what the Insurrection Act presumes.
“It’s ongoing criminal activity, but it is not of the quality, it is not of the intensity that is necessary for the Insurrection Act,” he told Newsmax’s Emma Rechenberg. “The Insurrection Act presumes that the state government is incapable and unable to protect its citizenry and to enforce federal laws or to enforce the civil rights of its citizens. So it truly is to be used as a deliberate measured response use of last resort.”
McDaniel, who joined the Cooley Law School full-time faculty as a professor in the Constitutional Law Department in 2010, and developed an LL.M. program in Homeland and National Security Law, teaches courses on the use of military force in the United States.