The Insurrection Act: The 218-Year-Old Law That Could Undermine American Democracy

Why an outdated emergency law could become a modern threat to civil rights, free speech, and public protest

Apr 08, 2025

What Every American Should Know About the Insurrection Act

Most Americans have never heard of the Insurrection Act, and even fewer grasp just how sweeping—and unsettling—its powers really are.

It’s a 218-year-old law that lives in the legal shadows, tucked deep within the U.S. Code. But in the wrong hands, it has the power to move military troops into our cities, override governors, and reshape the balance between freedom and force with nothing more than a presidential signature.

In a time of deep political division, disinformation, and erosion of democratic norms, the Insurrection Act is no longer just a historical artifact—it’s a live wire. The kind of law that could be activated under the guise of “order” while fueling something far more dangerous.

We owe it to ourselves—and our democracy—to understand what this law is, when it’s been used, how it works, and why its unchecked power should concern us all. Because once it’s invoked, it’s too late to ask the hard questions.

What Is the Insurrection Act?

Enacted in 1807, the Insurrection Act is a federal law that empowers the President of the United States to deploy active-duty military troops or federalize the National Guard within the country’s borders to suppress civil disorder, insurrection, or rebellion.

At its core, it’s a presidential power designed to protect the Union and enforce federal authority when local or state governments are unable—or unwilling—to do so. The Act is codified in 10 U.S. Code §§ 251–255, and its scope is broad. Maybe too broad.

It allows the President to unilaterally decide that certain conditions justify the use of federal troops—even without the request or approval of a state’s governor.

Let that sink in: a single decision from the Oval Office could bring combat-ready troops into American streets.

When Can It Be Used?

The Insurrection Act lays out three general conditions for activation:

1. At the request of a state government (10 U.S.C. § 251): When a state’s legislature (or governor, if the legislature can't be convened) requests federal assistance to suppress an insurrection.

2. To enforce federal law (10 U.S.C. § 252): When ordinary enforcement of federal laws is obstructed and local authorities can’t (or won’t) restore order.

3. To protect civil rights (10 U.S.C. § 253): When rebellion or domestic violence deprives citizens of their constitutional rights, and state governments are either failing or refusing to act.

In plain English: the President can act when laws are being ignored, chaos reigns, or states are standing in the way of constitutional protections.

How the Insurrection Act Has Been Used in American History

The Insurrection Act has been invoked sparingly over the course of American history, but its appearances have always coincided with moments of deep national crisis.

Presidents have turned to it not for routine law enforcement, but in response to seismic social upheaval: violent racial clashes, civil rights confrontations, urban unrest, and efforts to dismantle federal authority. It’s a legal tool reserved for the kind of chaos that threatens to upend the social order or undermine the Constitution itself.

And while it’s easy to view the Act as a necessary safeguard during moments of extreme unrest, history shows it’s also been used to confront state resistance, assert federal power, and—on occasion—uphold civil rights when local governments refused to act.

Understanding the context in which it’s been used helps illuminate not just its intended purpose, but also its potential for misuse. Below is a chronological look at when and why presidents have reached for this extraordinary authority.

Early 1800s–1870s: Suppressing Rebellion and Securing the Union

- 1814 – President James Madison used federal troops to suppress rioting during the War of 1812.

- 1850s – The Act helped enforce federal laws against resistance to the Fugitive Slave Act.

- 1860s (Civil War Era) – Abraham Lincoln used it to fight the Confederacy and suppress rebellion.

Post-Civil War: Reconstruction and Racial Justice

- 1871 (The Ku Klux Klan Act) – President Ulysses S. Grant used the Act to combat Klan violence and enforce civil rights in South Carolina, arresting hundreds of Klansmen.

This use was aimed at protecting newly freed Black citizens from racial terrorism—a key moment showing how federal power can be used for good.

20th Century: Civil Rights and Riots

- 1957 – President Dwight Eisenhower sent troops to Little Rock, Arkansas, to enforce school desegregation at Central High School, against the wishes of Governor Orval Faubus.

- 1962 – President John F. Kennedy invoked the Act to protect James Meredith as he integrated the University of Mississippi, facing violent riots.

- 1965 – Again used by President Lyndon B. Johnson during the Selma to Montgomery marches.

- 1967 – Johnson used it to respond to widespread urban riots, including in Detroit and Washington, D.C.

- 1992 – President George H.W. Bush used it during the Los Angeles riots after the acquittal of officers in the Rodney King beating.

Each use reflected either a moment of mass unrest or a stand for civil rights when states couldn’t—or wouldn’t—act.

The Insurrection Act in the 21st Century: Why It’s More Relevant Than Ever

Though not used recently, the Insurrection Act became a national talking point in 2020, when Trump threatened to invoke it in response to nationwide protests after the murder of George Floyd.

He didn’t go through with it—but the mere threat made headlines and raised alarms. The context was troubling: local governments had not requested assistance. Governors rejected the idea. The military hesitated. Former Defense Secretary James Mattis publicly opposed the move.

Then came January 6, 2021—a date now seared into the nation’s consciousness. In the aftermath of the Capitol riot, some speculated whether Trump had intended to invoke the Insurrection Act to hold power or delay certification of the election results.

There’s no direct evidence he formally invoked it that day—but the fact that it was even plausible tells us how vulnerable this law is to abuse.

The Insurrection Act Is Powerful. Too Powerful?

Here’s the catch: there are almost no checks.

The President doesn’t need congressional approval to invoke the Act. There’s no requirement to notify the judiciary. There are no oversight provisions once it’s used. And while the Posse Comitatus Act (1878) generally prohibits federal troops from acting as domestic police, the Insurrection Act is the biggest exception.

It is a blank check that a determined, authoritarian-leaning president could use to crack down on protests, suppress opposition, or stoke fear under the guise of "restoring order."

Legal scholars, military officials, and members of Congress from both parties have expressed concern. And yet, the law remains largely unchanged since the 19th century.

What Reform Could Look Like

In recent years, a growing chorus of voices in Washington—from legal scholars to lawmakers on both sides of the aisle—has called for urgent reforms to the Insurrection Act. The consensus? This powerful, centuries-old law was written for a very different America, and it’s dangerously out of step with the political realities and threats we face today. Here are a few ways we can modernize the Insurrection Act:

- Require Congressional Notification or Approval: For example, a president might be allowed to act for 7 days before needing congressional authorization to continue.

- Define “Insurrection” and “Civil Disorder” More Clearly: Right now, the language is vague. A peaceful protest could be labeled a disorder by a motivated leader.

- Judicial Review: Courts could be granted oversight over whether conditions actually justify the use of the Act.

- Transparency Requirements: Public reporting of reasons, timing, and plans for troop use could provide needed accountability.

A law with this much power should not rest on a 200-year-old framework written for a different era.

Why This Matters

You don’t have to be a lawyer to care about the Insurrection Act. You just have to care about living in a country where the military isn’t used to settle political disputes.

Because this law—quiet, obscure, and dangerously broad—gives any president the power to send troops into our cities with no warning, no oversight, and no meaningful checks. That should concern every American, regardless of party.

If you believe in the right to protest, the right to vote, the right to speak freely without fear of intimidation—then this matters. Because the Insurrection Act, when used without constraint, can override all of that. It can shift the balance of power away from the people and toward a single individual with an agenda.

We don’t have to wait for the worst-case scenario to realize this law needs reform. We can fix it now—before it’s used to silence, suppress, or control.

Updating the Insurrection Act isn’t about left or right. It’s about making sure the rule of law protects the people—not just the powerful. It’s about bringing a 19th-century law in line with 21st-century democracy.

And I believe this necessary update is one of the smartest, most necessary things we can do to safeguard our future.

Mitch Jackson, Esq. | links