Oath Keepers founder Stewart Rhodes, facing federal charges of seditious conspiracy for his role in the Jan. 6, 2021, attack on the U.S. Capitol, is basing his legal defense on the Insurrection Act, a more than 200-year-old law.
Rhodes will argue in his defense that he cannot be found guilty of seditious conspiracy, which carries a maximum penalty of up to 20 years in prison, because he was waiting for former President Trump to invoke the Insurrection Act to call up an armed militia in order to stay in power.
Even though Trump never did, Rhodes will argue that he was called on by the president to invoke the law.
Although it is often referred to as “The Insurrection Act of 1807,” the law involves a mix of statutes passed from 1792 to 1871 that authorizes the president to call up an armed militia or federal troops to quell a domestic rebellion or insurrection.
The Insurrection Act is included in the U.S. code and allows the president to invoke the act in any state, including the territories of Guam or the Virgin Islands, if the commander-in-chief affirms it is “impracticable to enforce the laws” of federal or state governments because of the rebellion or disturbance.
Before calling up forces, the president must issue a proclamation warning rioters or opposing groups to disperse.
The law has been invoked several times throughout American history and was last used in 1992 by President George H.W. Bush in response to rioting in Los Angeles, Calif., after a jury acquitted four police officers in the beating of Rodney King, which had been caught on videotape.
The original statute for the Insurrection Act was the Calling Forth Act of 1792.
That act allowed the president to call forth a militia from the states closest to the rebellion, according to the Congressional Research Service, but included some restrictions: the explicit approval of a judge and a temporary deployment.
President George Washington used the authority from the act to quell the Whiskey Rebellion in 1794, using thousands of militiamen to stamp out a rebellion in western Pennsylvania after farmers protested an excise tax on distilled whiskey.
In 1795, Congress revised the law into the Militia Act, which eliminated the restrictive provisions included in the original act.
President John Adams later used the Militia Act to put down the Fries rebellion in 1799 in eastern Pennsylvania after landowners rose up in opposition to a federal property tax.
In 1807, the law was amended again to include the Army and Navy. Throughout the 19th Century, various administrations deployed federal troops to states for a wide variety of cases.
During the Civil War, Congress amended the Militia Act at the request of President Abraham Lincoln in 1862, authorizing a draft to increase the number of soldiers in state militias and, for the first time, allowing African-Americans to be called up.
In 1871, Congress passed the Ku Klux Klan Act to combat the rising white supremacist group and other terrorist organizations. The law was the last significant amendment to the president’s powers of troop and militia deployment.
The extensive use of federal troops during the reconstruction period after the Civil War led to the Posse Comitatus Act of 1878, which restricts the use of federal forces in domestic and civil cases except when specifically authorized by law.
Throughout the 1950s and 1960s, the Insurrection Act was invoked several times to enforce laws, including by former Presidents Dwight Eisenhower and John F. Kennedy after the Supreme Court’s 1954 decision in Brown v. Board of Education.
While the last invocation of the act was in 1992, Trump had mulled using the law in the wake of the 2020 riots that swept the nation following the death of George Floyd.
There have been numerous attempts to reform the law from lawmakers and interest groups.
The Brennan Center for Justice, which sent a letter to the Jan. 6 House committee investigating the Capitol attacks this year, has criticized the law for giving the president an “almost limitless discretion to deploy federal troops in cases of civil unrest.”
The organization argued the act should lay out “more clearly and precisely what situations may trigger” its use.