The Insurrection Act, Revisited: Power That Waits in the Margins

The Insurrection Act usually enters public conversation the way a footnote does—small type, off to the side, technically important but easy to skim past. It tends to surface in moments of unrest, tucked into an article or a briefing with language that sounds almost routine: the president may deploy federal troops if… The phrasing is calm. The authority it describes is not.

That contrast is the first clue to what kind of law this is.

The Insurrection Act, enacted in 1807, sits quietly at the edge of American governance. It authorizes the president to deploy the U.S. military on domestic soil, a power otherwise restricted by the Posse Comitatus Act. It is rarely used, occasionally threatened, and often misunderstood. Its continued existence is not an accident or an oversight; it is a structural choice, made early in the republic’s life, to preserve a last-resort mechanism when other systems fail.

Understanding it requires stepping away from personalities and toward incentives—what the law assumes about institutions, what it permits when those assumptions break down, and what happens when emergency tools drift closer to ordinary politics.

The Act’s origins trace back to the Militia Acts of 1792, which allowed President George Washington to call up state militias during crises. Notably, Washington could not act unilaterally. A federal judge had to certify that civil authority was overwhelmed, as happened during the Whiskey Rebellion. The design was intentional: slow the executive down, require corroboration, and make the domestic military force unmistakably exceptional.

That friction didn’t last.

In the early 1800s, President Thomas Jefferson faced fears of armed rebellion linked to Aaron Burr. Jefferson argued that the existing framework was too slow for a young nation facing internal threats that could spread faster than formal processes allowed. Congress responded by expanding presidential authority. The Insurrection Act of 1807 permitted the use of the regular Army and Navy, bypassing the earlier reliance on state militias.

From a systems perspective, this was a tradeoff: speed for restraint, decisiveness for safeguards. The assumption was that emergencies would be rare—and that presidents would treat the power accordingly.

The modern statute reflects that same logic. It allows troop deployment in three broad scenarios: at a governor’s request, when federal law cannot be enforced through ordinary means, or when states fail to protect constitutional rights. The language is flexible by design. It does not define precise thresholds. It relies on judgment.

That reliance is both its function and its flaw.

Historically, presidents have invoked the Act in moments when state systems either collapsed or actively resisted federal law. Ulysses S. Grant used it to suppress Ku Klux Klan violence during Reconstruction, when local authorities refused to protect Black citizens. Dwight Eisenhower sent troops to Little Rock to enforce desegregation after state officials defied court orders. John F. Kennedy and Lyndon Johnson used it in similar civil rights contexts. In 1992, George H. W. Bush deployed troops at California’s request during the Los Angeles riots.

These cases share a pattern: the Act was used not to manage routine disorder, but to resolve institutional deadlock—when courts, states, or civil authorities could not or would not function as intended.

What has changed is not the law, but its visibility.

In recent years, the Act has been referenced more frequently in political rhetoric, even when not formally invoked. Each reference matters. Not because it signals immediate action, but because it shifts expectations. Emergency powers depend on shared norms about rarity and restraint. When those norms erode, the mere existence of authority begins to shape behavior.

This is where incentives quietly reassert themselves. A law written for collapse becomes tempting during conflict. A mechanism designed for system failure starts to look like a shortcut around institutional friction. And once that happens, the balance between civilian governance and military force—already delicate—tilts.

The Insurrection Act remains controversial for this reason. Its breadth grants presidents significant discretion. It overrides state preferences. It stands as the primary exception to a longstanding prohibition against military involvement in civilian law enforcement. Each invocation, or threat of one, becomes precedent—not just legally, but culturally.

None of this means the Act is illegitimate. It exists because systems can fail, and because ignoring that reality would be naive. But the law was built for crisis, not convenience. Its

historical use reflects that understanding. Its future impact depends on whether that understanding holds.

The danger is not sudden authoritarianism. It is normalization—the gradual lowering of the bar for extraordinary action until it no longer feels extraordinary at all.

The Insurrection Act doesn’t announce itself loudly. It waits at the edges of governance, built for moments when institutions falter. Whether it remains a last resort or drifts into routine use is not a question the statute can settle. That responsibility rests with the norms and incentives that shape presidential behavior — and with a public that understands the difference between crisis and convenience.

Democratic systems rarely fail in a single moment. They erode through small recalibrations of what feels acceptable. The Insurrection Act is one of those pressure points. Its future impact will depend less on the breadth of the authority it grants and more on the collective discipline required to keep extraordinary power extraordinary.

Linda Hansen is a writer and the founder of Bridging the Aisle, a nonpartisan platform fostering honest, respectful dialogue across divides and renewed trust in democracy.