Editorials & Other Articles

REPORT
THE CITY BAR CALLS UPON CONGRESS TO CLARIFY THE INSURRECTION AND POSSE COMITATUS ACTS

The New York City Bar Association[1] (the “City Bar”) is gravely concerned about two laws that carry the potential for unprecedented misuse of the United States military: the Insurrection Act of 1807[2] and the Posse Comitatus Act of 1878.[3] Absent a clear need either to assist state and local authorities in quelling major, violent, civil unrest, or to assure the protection of constitutional rights, using the military in immigration enforcement would be inappropriate, contrary to its customary use, and place servicemembers in roles in which they lack the necessary training and experience. To prevent the Executive Branch from abusing the power granted by these vague and outdated statutes, we call upon Congress to reform these laws at its earliest possible opportunity, and we urge the incoming Trump administration to refrain from such unprecedented misapplication of these statutes.

As early as June 2020, when state governors faced turbulent demonstrations related to the Black Lives Matter movement and other issues, then-President Donald Trump threatened to deploy the military to “solve the problem,” suggesting that U.S. troops would be used to confront, control, and possibly detain U.S. citizens. And in the aftermath of the November 2020 election, in response to concerns over potential post-election civil unrest should President Trump refuse to step down, Jeffrey Clark (at the time, the acting head of the Justice Department’s Civil Division and President Trump’s expected pick for Attorney General) stated “That’s why there’s an Insurrection Act.”[4] More recently, President-elect Trump has indicated that he would invoke the Insurrection Act to use National Guardsmen and federal troops to remove non-citizens who lack legal status from the United States. And in October, 2024, President Trump threatened to use the U.S. military to counter unspecified dangers posed by supposed domestic opponents, labeling them the “enemy from within.”[5]

As the Commander in Chief, the President wields a tremendous amount of power. But like all power in a democracy, it is not unlimited. The New York City Bar Association urges the Executive Branch, including the President and senior military leaders, to respect those limits, thereby preventing the abuse of power and the military’s misuse, pending clarifications by Congress.
https://www.nycbar.org/reports/a-call-for-congress-to-clarify-the-insurrection-and-posse-comitatus-acts/