Act II: The Insurrection Act of 1807

Let’s proceed with our review of federal “domestic violence” law. When former Vice President Aaron Burr was accused of orchestrating a shadowy conspiracy to create an independent republic in North America in late 1805, President Thomas Jefferson took decisive military and legal actions to apprehend the conspirators and halt Burr’s scheme. (This enigmatic episode in our nation’s history is referred to by historians as The Burr Conspiracy.) From a legal perspective, however, President Jefferson found himself in a constitutional “catch-22” situation. On the one hand, only State militias could be used against domestic insurrections under then-existing law (the Militia Act of 1795, which we reviewed in a previous post). On the other hand, Aaron Burr intended to create an independent republic in Texas, and at that time, Texas was a Spanish dominion, not a U.S. State, so there was no State militia for Jefferson to call!

The solution to this legal catch-22 was federal legislation authorizing the use or regular U.S. Army soldiers as well as local militias to respond to domestic dangers, and the Congress soon thereafter adopted this novel solution when it enacted the Insurrection Act of 1807. This remarkable law consists of a single sentence and is worded as follows:

That 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.

This dangerous law expands the president’s authority to use military force inside the United States 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 federal military force to enforce both State laws as well as federal laws. But even 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”); for the first time the 1807 law also authorized the president to activate federal troops. 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 obtained legislative authority from Congress to use regular federal troops in addition to State and local militias to respond to domestic dangers.

In the scheme of things Aaron Burr’s conspiracy was a small blip on the constitutional radar; the greatest threat to the vitality of the Constitution and to the territorial integrity of the United States was yet to come: the Civil War (1861-1865). The Congress further expanded the president’s legal authority to use military force inside the U.S. when it enacted the Suppression of Rebellion Act of 1861 and Enforcement Act of 1871, so we will review those two laws in our next post.

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About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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