Passé Comitatus / We Don't Need No Insurrection

The specter of the Burr Conspiracy, the crackdown of the Bonus Expeditionary Army protest, the escalating crisis in Los Angeles, the looming Flag Day parade—and what we can do to safeguard democracy

I. The 1807 of It All

In July of 1804, Aaron Burr, then the sitting Vice President of the United States, met Alexander Hamilton on the dueling grounds of Weehawken, New Jersey, just across the Hudson River from Midtown Manhattan.

Everyone who’s seen Hamilton knows what happened next. Hamilton, mortally wounded, was carried back to New York, where he slowly died. Burr fled to his daughter’s house in South Carolina; he was indicted in both New Jersey and New York, but never went to trial—setting a precedent for our presidents and vice presidents not to be held accountable for major crimes committed while in office. After laying low for a bit, he went back to Washington to finish out his term.

Burr was a fascinating, formidable figure. Although aligned politically with the enslaver Thomas Jefferson, he was opposed to slavery, going so far as to introduce a bill in New York abolishing the institution. He was also a staunch supporter of women’s suffrage, a firm believer in gender equality, and a notorious ladies’ man—what was then called a “rake” but is now known as a sex addict, with a reputation for leaving generous tips at the many brothels he patronized, both at home and abroad. He founded the Manhattan Company, which a century and a half later became the “Manhattan” in Chase Manhattan Bank. And while he didn’t earn enough votes to defeat Jefferson, he came close; until the fallout from the Hamilton duel, he was a popular politician.

When his term ended in 1805, Burr headed to the frontier, where he allegedly conspired with an army general, James Wilkinson, who was also the governor of the Louisiana Territory, and a deep-pocketed plantation owner, the wonderfully-named Harman Blennerhassett, to establish, in the Old Southwest Territory, an independent country, where slavery would be illegal.

It was that last part that rankled President Jefferson. If enslaved Blacks ran away en masse to Aaron Burr’s new abolitionist utopia, what would become of the Southern economy? It wasn’t just bluster. Blennerhassett had the financing, Wilkinson had the muscle, and Burr—who, again, had just murdered Hamilton—had both the leadership skills and the audacity to move forward with the scheme. Jefferson viewed the enterprise, not imprudently, as a legitimate threat to the national security of the United States.

And so, on March 3, 1807, the last day of the Ninth Congress, the legislature enacted “An Act authorizing the employment of the land and naval forces of the United States, in cases of insurrections”—better known as the Insurrection Act of 1807.

That was the historical context in which the bill was conceived: the so-called Burr Conspiracy, the not-unrealistic prospect of a former vice president and an active U.S. army commander joining forces to found a breakaway republic on the western banks of the Mississippi.

It would have been unthinkable to the members of the Ninth Congress that, 22 decades later, a bill enacted to prevent the establishment of a rival nation in the middle of the continent would be invoked to shut down a few thousand citizens peacefully protesting the arbitrary kidnapping of U.S. residents by heavily armed federal oprichniki.

Aaron Burr was duly arrested, tried, and found not guilty of treason. He subsequently sailed across the Atlantic, where he spent the rest of Jefferson’s second term and Madison’s first sampling the bordellos of Europe, before returning to New York, where he died in 1836.

---

II. Invocations

President Jefferson took the Insurrection Act out for a test drive in April of 1808, when some merchants in the Lake Champlain region traded goods with the British, in defiance of the Embargo Act of 1807. It didn’t really work.

After that, as the Zinn Project explains, the Insurrection Act

was called upon when the United States wanted to suppress American Indian sovereignty. The law was also the legal basis for the Civil War, as it gave Abraham Lincoln powers to send federal troops into Southern states.

With a few exceptions, the law has historically been used to make a federal military response to labor disputes or anti-racism protests.

Andrew Jackson used the law to put down Nat Turner’s Rebellion and to put down a revolt by C&O Canal laborers in Maryland.

Ulysses S. Grant used the law at least three times during Reconstruction to respond to violent racist rioting by the Klan and other white supremacists. Grover Cleveland cited it to respond to the Pullman Strike in 1894 and Woodrow Wilson used the power to send troops to the 1914 Colorado Coalfield War.

Harding used it in 1921 to put down a strike in West Virginia; in 1943, FDR used it to quell a Detroit race riot. The New York Bar Association, in an eleventh-hour plea to Congress to reform the Insurrection Act before Trump’s second inauguration, rounds out our list:

In 1968, civil unrest swept across several states following Martin Luther King, Jr.’s assassination. President Johnson then invoked the Insurrection Act to suppress four days of riots that resulted in the death of 13 people and approximately 1,000 injured.

In 1987, President Reagan invoked the Insurrection Act when approximately 1,400 Cuban detainees took over a prison in Atlanta, Georgia and held hostages. Federal troops were not deployed into the prison. Rather, a small group of Army special forces soldiers advised and assisted federal law enforcement officers.

In 1989, President Bush used the Insurrection Act to deploy troops to the Virgin Islands in response to riots and looting in the aftermath of Hurricane Hugo.

The most recent invocation was over 30 years ago:

In 1992, President Bush invoked the Insurrection Act after large-scale rioting erupted in Los Angeles. The riots lasted six days, and by the time federal troops arrived, the riots had mostly been put down by state National Guard troops. Federal troops primarily served in support roles.

Today’s Los Angeles is not the Los Angeles of Rodney King and Daryl Gates. There are no riots. There is no looting. The peaceful protests happening there are in response to ICE, a federal agency, performing raids in the city, kidnapping allegedly undocumented immigrants in an arbitrary and cruel manner reminiscent of Ivan the Terrible’s secret police—who, incidentally, also concealed their identities. (Trump can’t help but emulate the worst that Russia has to offer.)

I have included the full list of precedents to show that nothing happening in Los Angeles now meets the standards established by the previous invocations of the Insurrection Act. Even the handful of Lake Champlain merchants, not to be confused with true insurrectionists, were at least, like, breaking the law.

---

III. Posse in Effect

A president can’t just wave his wand and summon the Insurrection Act willy-nilly. There are specific conditions under which it can be legally invoked. (I know Trump doesn’t care about the law, and the Roberts Court will likely let him do whatever he wants, but bear with me.) Joseph Nunn of the Brennan Center explains:

Section 251 allows the president to deploy troops if a state’s legislature (or governor if the legislature is unavailable) requests federal aid to suppress an insurrection in that state. This provision is the oldest part of the law, and the one that has most often been invoked.

While Section 251 requires state consent, Sections 252 and 253 allow the president to deploy troops without a request from the affected state, even against the state’s wishes. Section 252 permits deployment in order to “enforce the laws” of the United States or to “suppress rebellion” whenever “unlawful obstructions, combinations, or assemblages, or rebellion” make it “impracticable” to enforce federal law in that state by the “ordinary course of judicial proceedings.”

Section 253 has two parts. The first allows the president to use the military in a state to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” that “so hinders the execution of the laws” that any portion of the state’s inhabitants are deprived of a constitutional right and state authorities are unable or unwilling to protect that right. Presidents Dwight D. Eisenhower and John F. Kennedy relied on this provision to deploy troops to desegregate schools in the South after the Supreme Court’s landmark decision in Brown v. Board of Education.

The second part of Section 253 permits the president to deploy troops to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” in a state that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.”

The vagueness of that last bit is what might bite us in the collective ass. As Nunn says, “This provision is so bafflingly broad that it cannot possibly mean what it says, or else it authorizes the president to use the military against any two people conspiring to break federal law.” Which is what Donald is almost certain to attempt.

Invocation of the Insurrection Act is important, because without it, there is no legal basis for suspending the Posse Comitatus Act, which prevents the use of the military for domestic law enforcement. That legislation was enacted in 1878, during the Hayes administration, “after the end of Reconstruction and the return of white supremacists to political power in both southern states and Congress,” as Nunn explains. (Hayes doesn’t get enough blame for perpetuating the country’s systemic racism, although Trump would rather ding him for failing to install a ballroom during his White House renovations.)

Nunn continues:

Through the law, Congress sought to ensure that the federal military would not be used to intervene in the establishment of Jim Crow in the former Confederacy.

Despite the ignominious origins of the law itself, the broader principle that the military should not be allowed to interfere in the affairs of civilian government is a core American value. It finds expression in the Constitution’s division of power over the military between Congress and the president, and in the guarantees of the Third, Fourth, Fifth, and Sixth Amendments, which were in part reactions to abuses committed by the British army against American colonists.

Today, the Posse Comitatus Act operates as an extension of these constitutional safeguards. Moreover, there are statutory exceptions to the law that allow the president to use the military to suppress genuine rebellions and to enforce federal civil rights laws.

It seems pretty clear that Trump intends to 1) invoke the Insurrection Act, in order to 2) suspend the Posse Comitatus Act, in order to 3) sic the military on the peaceful protestors and 4) occupy the city.

As I type this, U.S. Marines are set to be deployed to Los Angeles, ostensibly to help the National Guard help the LAPD safeguard the heavily armed ICE stormtroopers from the spectacle of concerned citizens waving “CALIFORNIA MELTS ICE” signs in their ugly masked faces, so they can continue their oh-so-important mission of kidnapping brown people from every Home Depot parking lot from Altadena to El Segundo. This seems…excessive.

(Incidentally, Pete Hegseth et. al are so incompetent that the National Guard already present in the city are sleeping on the ground. It’s a shameful, disgraceful mess.)

The Marines now on stand-by in Southern California? They are prohibited by Posse Comitatus from so much as directing traffic on Sunset Blvd. But once Trump invokes the Insurrection Act, all bets are off.

---

IV. Musical Interlude

I hear that for the occasion, Pete Hegseth has updated the lyrics to “The Marines’ Hymn”:

Donald Trump’s Marines’ Hymn

From the piers of Santa Monica,
Down the posh Rodeo Drive,
Through the stands of Dodger Stadium,
Up and down the 405.

We have read the Insurrection Act,
But we don’t know what it means.
We are just following orders—
We are Donald Trump’s Marines.

It’s a group of peaceful protestors,
It is not a violent mob.
Still, we march on the Home Depot,
So that ICE can do its job.

And when we’ve secured Los Angeles,
We will help the cops in Queens.
To hell with posse comitatus,
We are Donald Trump’s Marines.

---

V. The Shield Doctrine

If what’s happening in L.A. feels different, that’s because it is. We’ve entered a new phase of slouching towards dictatorship. We’re running out of time. (How many Rubicons must Donald cross before we realize he wants to be Caesar?)

Happily, there are still things that can be done—if the governors of the Blue States, and Gavin Newsom in particular, rise to the occasion. The pseudonymous former policy advisor William A. Finnegan, writing at The Long Memo, offers a brilliant plan of attack—or, rather, plan of defense. He call it the “Shield Doctrine.” Essentially, the National Guard and the LAPD, which work for the state and the city respectively, need to shield the protestors from the federal agents. He explains:

Under Printz v. United States (1997), the Supreme Court made clear that the federal government cannot commandeer state or local officials to enforce federal law. This is the heart of the anti-commandeering doctrine, rooted in the 10th Amendment. States are sovereign entities. Their officials answer to state law—not to the President or federal agencies.

Similarly, in U.S. v. Arizona (2012), the Court held that immigration enforcement is a federal responsibility, and states can't create parallel systems. But the flip side is equally important: states aren’t obligated to participate either. Refusing to help is not rebellion. It’s a constitutionally protected right.

So LAPD, CHP, county sheriffs—they’re under no obligation to cooperate with federalized National Guard, ICE, or active-duty military unless a specific court order or statute compels them. And there is no such statute now in play. . . .

Newsom, and all of the city mayors (this won’t stop at Los Angeles) should deploy state and local law enforcement not to confront protesters, and not to confront federal troops—but to position themselves between the two.

In other words, preserve order and protect the citizens of the State of California from the abuse by the federal government.

Finnegan then lays out the specifics of the strategy, which are too long to quote here, but which I strongly encourage you to read in full.¹

What Trump—or, more accurately, Santa Monica’s own resident Nazi Stephen Miller—is perpetrating in L.A., Finnegan says, “is a dry run for something bigger.”

As Finnegan sees it,

This can go one of three ways:

One: It limps along. Protests, ICE cosplay, the Guard wandering in circles. Maybe it fizzles. 60–70% odds. Everyone breathes a little easier.

Two: It goes hot. Someone panics. Someone overreacts. An APC opens fire. In 20 seconds, 100 people are dead. 10–15% odds. And then it’s Donkey Kong time.

Three: States push back. Optics shift. Trump caves. Because that’s what he does. He’s the king of TACO—Trump Always Chickens Out. He doesn’t do hard. He’s a lazy guy. What he does? He does loud. He doesn’t do consequences. He does headlines.

So push him. Hard.

Wrap the people of Los Angeles in the thin blue line.

Yes, it’s ironic. LAPD protecting people instead of cracking skulls? Daryl Gates is spinning in his grave. But this time, that’s the job.

LAPD. LASD. CHP. Every department. Form a wall. Step between ICE, DHS, the Guard, and the people.

It is imperative that Trump’s Los Angeles power play fails. Newsom can’t fuck around. Suing Trump is well and good, but that can’t be the only response. If we’re going to get through this crisis with the Union and our democracy intact, we have to use every tool at our disposal. We can’t continue to Chuck Schumer this shit.

---

VI. The Fall of the Bonus Expeditionary Forces

Los Angeles is a testing ground, a dress rehearsal for a larger and more ambitious production. If L.A. is occupied by U.S. troops, New York will be next, and Chicago, and Seattle, and so on.

The protests happening on Saturday, June 14, when Donald is throwing his stupid, Soviet-style military parade, will potentially provide ample opportunity for him to impose martial law.

It won’t take much. Things could escalate right quick.

Speaking of the Flag Day parade and Washington, D.C., there is one instance of the invocation of the Insurrection Act that I omitted from the above list, because it was subsequently found to be illegal:

On July 28, 1932, a contingent of some 20,000 World War One veterans peacefully descended on the nation’s capital to demand bonus payments from President Hoover. They called themselves the “Bonus Expeditionary Forces.”

As the Washington Post wrote in 2017, in a “Retropolis” story about the incident:

The former servicemen were scattered throughout the city but two camps stood out — a group squatting around buildings slated for demolition east of the Capitol on Pennsylvania Avenue, and a larger encampment in the Anacostia Flats, south of the 11th Street Bridge in what is now Anacostia Park. A rival group, the Worker’s Ex-Servicemen League, Communist vets at odds with Waters’s group, tented at 14th and D streets in Southwest Washington.

Gen. Douglas MacArthur—who was, incidentally, a real tyrannical motherfucker—gathered 200 troops on horseback and broke up the protests with “brutal efficiency”; the B.E.F. encampments at the Capitol and at Anacostia and the Communist encampment at 14th and D were all cleared. There was tear gas in the air and fires blazing and a lot of injured veterans. One veteran, William Hushka, was shot dead—he survived the trenches and the chemical warfare of Belgium and France, only to die at a peaceful protest in D.C. (Would Trump consider him a sucker, a loser, or both?)

The next day, the Post ran this headline:

ONE SLAIN, 60 HURT AS TROOPS ROUT B.E.F. WITH GAS BOMBS AND FLAMES

MacArthur’s pretext? You guessed it: the Insurrection Act.

The District of Columbia, as we all learned on J6, occupies a sort of gray area in the laws regarding the deployment of the National Guard—something to be aware of on Saturday, when Donald will hold his birthday parade.

In closing, I will share something the Ukrainian journalist Nataliya Gumenyuk, director of the Public Interest Journalism Lab, said on Friday, when asked about why the Ukrainian people refuse to surrender to the Russians: “War is bearable. Occupation is not.”

Let’s hope this line of thinking never applies to what’s happening inside the United States.

---

Photo credit: Library of Congress. MacArthur issuing commands before his forces fuck up the WWI vets in 1932.

1. Thanks to John Rich for alerting me to this.