Expansion of the President’s Emergency Powers: The Insurrection Act of 1807

Thus far, we have reviewed the Militia Acts of 1792 and 1795. Those laws authorized the president to activate only state or local militias and only in three specific situations: invasions, insurrections, and obstructions of U.S. laws. But Congress would eventually vote to expand the president’s emergency powers when it enacted the Insurrection Act of 1807, available here. This historic law consists of a single sentence and is worded as follows:

“in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.”

Although the 1807 Insurrection Act did not repeal or modify the proclamation requirement under the old Militia Act of 1795, this law expanded the president’s emergency powers in two significant ways. First, the new law applied to “all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory.” In other words, the president could now use military force to enforce state laws as well as federal laws.

But more importantly, the 1807 law not only authorized the president to “call forth” state or local militias in these two situations (“insurrection” and “obstruction to the laws”); the new law also authorized the president to activate the U.S. armed forces in these situations. Prior to 1807, the president had to rely on state or local militias to put down rebellions and repel invasions on U.S. soil. Now, beginning with the 1807 law, the president had legislative authority from Congress to use federal troops (in addition to state and local militias) to respond to domestic emergencies.

When Congress enacted the Insurrection Act of 1807, it did not formally amend the language of the existing Militia Act of 1795. That would change when Congress enacted “The Suppression of Rebellion Act of 1861” on the eve of the U.S. Civil War. We will delve into the 1861 law in our next post.

Image result for martial law

Could it happen here?

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