Mob violence in Minnesota isn’t free speech — it’s grounds for the Insurrection Act

Should we tolerate the chaos and violence in Minnesota as a sign of a vibrant democracy or crush it as an "insurrection" or "domestic violence" that "hinders the execution of the laws"?

President Donald Trump has been unequivocal that it is an insurrection, and has threatened to deploy armed forces using the Insurrection Act to crush the protests. It turns out that he may well be within his powers to do just that. Here’s why.

The power of the president to deploy armed forces against insurrections dates back to the Calling Forth Act of 1792, which was passed by the 2nd Congress of the nascent United States. Chapter 28, sec. 2, of that law stated, "whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations … it shall be lawful for the President … to call forth the militia … to suppress such combinations, and to cause the laws to be duly executed." President George Washington used this law to quell violent protests by farmers angered by the imposition of taxes on the distillation of whiskey. The so-called "Whiskey Rebellion" saw Washington himself lead a militia of about 13,000 to end the unrest.

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That 1792 law was not an American invention. Its origins can be traced at least as far back as the 1661 King’s Sole Right Over the Militia Act and the 1662 Act for ordering the Forces in the Several Counties of this Kingdom passed by the English Parliament. The logic was simple: the king’s laws were backed up by the king’s arms and his realm could only be maintained if insurrectionists could be crushed by troops at his command.

Our Founding Fathers were well aware of this English history. Thereafter, the 1807 Insurrection Act was passed giving the president the power "in all cases of insurrection, or obstruction to the laws," to use the militia "for the purpose of suppressing" insurrection or "of causing the laws to be duly executed," as "shall be judged necessary."

An amended version of the Insurrection Act was used by President Abraham Lincoln during the Civil War. In his July 25, 1862, proclamation, Lincoln referenced the law to "warn all persons … to cease participating in, aiding, countenancing, or abetting the existing rebellion or any rebellion against the Government of the United States."

The most recent invocation of the statute was by President George H.W. Bush during the Los Angeles riots.

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In its current form, the law’s key provisions are in Title 10, Sec. 252 and 253. Section 252 provides, "whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, 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."

Sec. 253 authorizes the president to "take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it — (1) so hinders the execution of the laws … and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or (2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice."

The statute gives broad power to the president: it is he alone who can determine whether he "considers" there are obstructions to the enforcement of the laws, and he is the sole judge of what are "necessary" measures to "suppress" the violence.

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The language does not leave much room for judicial second-guessing of the president’s power. Justice Story’s opinion in the case of Martin v. Mott (1827), established that "the authority to decide whether the exigency has arisen belongs exclusively to the President, and that his decision is conclusive upon all other persons. … this construction necessarily results from the nature of the power itself and from the manifest object contemplated by … Congress. The power itself is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances which may be vital to the existence of the Union."

Justice Story was aware of the downsides of the "very high and delicate nature" of the president’s power. He deferred to the president’s discretion, admitting that "[a] free people are naturally jealous of the exercise of military power, and the power to call the militia into actual service is certainly felt to be one of no ordinary magnitude."

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The violent incidents in Minnesota are not some form of peaceful civil disobedience in the genre of Henry Thoreau, who inspired peaceful protests by Gandhi and Dr. King. They are organized acts of violence perpetrated by paid instigators funded by dubious sources. Their attacks on counter-protesters, malicious personal targeting of ICE personnel and willful obstruction of federal law enforcement have to be tackled.

The law must apply in Minnesota, just as much as in Missouri, if the union has to have any meaning. And the curious silence of these protesters in the face of egregious fraud and corruption (which is far more important to the average citizen than ICE) in Minnesota shows that these protests are not about respect for the law — they are a calculated attack on the rule of law.

Those who oppose ICE actions have peaceful alternatives to ventilate their grievances. If ICE oversteps, they have recourse to the courts, where judges have been all too willing to rule in favor of challenges to the Trump administration’s immigration law enforcement actions. Which makes these violent protests all the more unworthy of support. They resemble insurrection and unlawful obstruction more than civil disobedience.

If the protesters do not heed Trump’s warnings and cease violence, they should meet the full force of the president’s executive powers. Minnesota cannot pick and choose which federal laws it likes to enforce. If its leaders fail to execute the laws and instead support insurrectionists, they must bear the consequences.