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VERIFY: Here's what the Insurrection Act is and why a president can't 'secretly' invoke it

The use of the Insurrection Act is a hot topic after the Capitol riots. But what does it take for it to be invoked, and who can stop it?

WASHINGTON — In June of 2020, at the very beginning of the summer's massive Black Lives Matter movement, President Trump appeared to be planning to invoke the Insurrection Act of 1807 to suppress protests across the country. 

Now, seven months later, after mobs of his supporters stormed the U.S. Capitol Building to stop the counting of electoral votes, questions are reemerging about whether he will entertain the possibility of the Insurrection Act again.

On top of that, some conspiracy groups on fringe social media platforms like Parler and Telegram believe the president has already secretly invoked the Act, and possibly plans to use it to fulfill the "prophecies" as told by the far-right conspiracy theory, QAnon. So we're verifying the key questions about this act, and how it could actually be enforced.

QUESTIONS:

  • What is the Insurrection Act of 1807?
  • How does it work?
  • Is there any check on the president's powers to invoke the act?

ANSWERS:

The Insurrection Act of 1807 allows the president to deploy the military on U.S. soil to stop an insurrection or violent uprising. The president first needs to make a public proclamation of it's invocation. The three branches of government — the executive, legislative and judiciary — all have the ability to halt the president's use of the act if they deem it improper.

Here's what that would look like.

SOURCES:

What is the Insurrection Act?

"In one form or another since 1807, the Insurrection Act gave presidents the opportunity to deal with massive insurrection or unrest," Robert Peck, a constitutional attorney, explains. It's an emergency measure to send military action to quell violence. 

"[A president] basically asks the military to stop the insurrection or domestic violence. Then you would have the military making decisions about what was necessary to accomplish that."

Jeffrey Jacobovitz agrees, telling us via email that the act is used to suppress civil disorder, insurrection or rebellion. Asked if it can be invoked when there is no active insurrection, he points out that "a President cannot declare war without Senate approval." It would likely be blocked.

RELATED: VERIFY: What does insurrection mean?

How could it be invoked?

Peck says there are three provisions in the Insurrection Act, or reasons why it would be invoked. First, if a state's government requests help. 

"Governor Pete Wilson asked [President] George H.W. Bush for assistance to quell the riots in Los Angeles," Peck explains. This was the last time the Insurrection Act was invoked and falls into the first category of a request for military assistance. 

The second provision applies if a state's government is under siege or is not functioning. 

"Therefore, the President can essentially assume that they would have wanted help, and provide that help," Peck says. The act was invoked for this reason after the Civil War to enforce desegregation orders in the South.

The third provision is top of mind for most people discussing the Act recently: If institutions are not functioning in their normal way, or if there is an insurrection or major civil unrest, then the president may use the military to restore the functioning government.

Are there any checks and balances of power?

Peck makes it very clear that there is an essential first step if a president decides to unilaterally invoke the Insurrection Act. He must issue a public proclamation declaring his intent to invoke.

"This public proclamation basically asks those who are the insurgents to cease and desist and go back to their homes peaceably, and give them the opportunity to do that." Peck says that alert also gives the checks and balances system to kick in.

There are three main ways, Peck says, that the other branches of government can step in and remove the president's insurrection act invocation.

At the executive branch, the vice president and the cabinet could invoke the 25th Amendment. This allows the vice president to instead take over all presidential duties, meaning the president's use of the Insurrection Act would be halted.

RELATED: VERIFY: Would Pence be the 46th president and Biden the 47th if Trump is removed?

At the legislative branch, a normal piece of legislation would stand in a president's way. Because the Act is already a legislative action, NOT a part of the Constitution, Peck says it's possible for the House and Senate to remove the president's authority to invoke.

And at the judiciary branch, if a court case challenging the President's use of the Insurrection Act rises to the Supreme Court, they could rule that the act is being used improperly and request that the military actions stop.

"Of course," Peck provides a caveat, "this part the Act has not really been tested. We don't know how the courts would react to it, or whether they would regard this as a political question, in which the courts need to step out of it. We also don't know how Congress would react to it."