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What is the Insurrection Act, and can Trump use it against the protests?

Analyzing Trump's calls for military action
Analyzing Trump's calls for military mobilization to confront nationwide protests 03:39

On Monday, President Trump said he would deploy the military against protesters if local officials cannot stop violence that has erupted in some areas. Only states can activate the National Guard, so many questioned whether the president has the legal authority to deploy troops in American cities.

There are circumstances where a president can do so under the Insurrection Act of 1807, which has been amended several times in the years since. According to the law, posted online by the Legal Information Institute at Cornell Law School:

"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."

Past presidents have employed the Insurrection Act to send the military to Southern states to ensure court-ordered desegregation of schools in the 1950s and 1960s, and at the request of several states to quell riots in 1968. It was most recently used in 1992, when troops were sent to Los Angeles after the California governor sought federal help during the riots following the police acquittal in the beating of Rodney King.

Still, Mr. Trump's comments about sending in troops put him in conflict with some state officials, who disputed that the president can send troops against their will.

"The President of the United States is not a dictator, and President Trump does not and will not dominate New York state," New York Attorney General Letitia James tweeted on Monday. "We will guard the right to peaceful protest & will not hesitate to go to court to protect our constitutional rights during this time & well into the future."

"On the legal side, the 1981 Reagan Justice Department concluded that the Insurrection Act does not give the federal government or president unlimited powers, it has to be done in concert with governors," CBS News chief Washington correspondent Major Garrett said on "CBS This Morning" Tuesday.

The American Civil Liberties Union (ACLU) condemned the idea of using the military, urging that "governors, mayors, and police chiefs should listen to protesters — and ignore the president."

"We do not need authoritarian tactics like military intervention to silence dissent," the ACLU tweeted. "We need the political will to dismantle the deep-seated racism and inequity that permeates our institutions — especially our police departments."

During his speech Monday evening in the White House Rose Garden, Mr. Trump said, "If a city or a state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them." 

He called himself the "president of law and order and an ally of all peaceful protesters." 

But as the president was speaking, peaceful protesters across from the White House in Lafayette Park were met with tear gas and flash bangs as police cleared the area. Just a few minutes later, Mr. Trump walked through the park with a group of White House aides and reporters in tow and stopped to hold up a Bible in front of the historic St. John's Church — a photo-op that drew condemnation from the Episcopal bishop.

Democrats quickly denounced the president's remarks. In a tweet, Democratic Senator Ron Wyden called the speech "fascist," sand said it "verged on a declaration of war against American citizens."

"These are not the words of a president. They are the words of a dictator," Senator Kamala Harris tweeted.

Could Trump invoke the Insurrection Act to send in troops? 12:01

But despite the criticism, CBSN legal contributor Keir Dougall said there are cases when a president could legally send in troops against a state's wishes.

"President Eisenhower used the Insurrection Act in 1957 to integrate Little Rock High School without the approval of then-Arkansas Governor Orville Faubus," Dougall said. "The president does not need the approval of the state to implement or use the Insurrection Act." 

"Could the state governor or legislature order the National Guard to oppose the U.S. military forces from entering the state? I don't even want to consider that possibility. At that point, you're talking about another Civil War," he added. 

Dougall, a lawyer and former federal prosecutor, said the preconditions for implementing the Insurrection Act require that local and state law enforcement has broken down and some sort of violence is obstructing the execution of state law.

"That's pretty loose. That's sort of in the eye of the beholder," Dougall said. "If the president considers that that condition exists and that people's rights cannot be enforced ... that's it. The president can order federal troops in."

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