<div class="css-17ih8de interactive-body"><style> .g-doc-page_paper:not(.g-doc-page_html) { padding-top: 129.73124300111982%; } .g-related-link { width: calc(100% - 40px); max-width: 600px; margin: 20px auto 16px; border-top: 1px solid #ccc; padding-top: 20px; } .g-related-link_header { font-family: nyt-franklin, arial, helvetica, sans-serif; font-size: 0.75rem; font-weight: 700; text-transform: uppercase; letter-spacing: 0.05em; color: #999; margin-bottom: 10px; } .g-related-link a { text-decoration: none; color: #333; } .g-related-link a:hover { color: #666; text-decoration: underline; } .g-related-link_text { font-family: nyt-cheltenham, georgia, 'times new roman', times, serif; font-size: 1.125rem; line-height: 1.375rem; font-weight: 700; color: #333; margin: 0; } @media (min-width: 740px) { .g-related-link_text { font-size: 1.1875rem; line-height: 1.4375rem; } } </style> <div class="g-graphic"> <div class="g-doc-wrapper g-ocr-ready"> <div class="g-item g-document"> <div class="g-doc-page_wrapper"> <div class="g-doc-page_container"> <div class="g-doc-page g-doc-page_image" data-hasannotations="false" id="page-1"> <div class="g-doc-page_inner clearfix"> <div class="g-doc-page_paper doc-shell"> <img alt="Page 1 of 4" aria-describedby="page-1-text" class="g-doc-image lazyload" data-src="https://static01.nyt.com/newsgraphics/documenttools/e8946c53a81cb38e/1/output-1.png" height="2317" src="https://static01.nyt.com/packages/flash/multimedia/ICONS/transparent.png" width="1786"/> <noscript> <img alt="Page 1 of 4" aria-describedby="page-1-text" class="g-doc-image" height="2317" src="https://static01.nyt.com/newsgraphics/documenttools/e8946c53a81cb38e/1/output-1.png" width="1786"/> </noscript> <p class="g-doc-text" id="page-1-text">MEMORANDUM FOR: SUSIE WILES October 29, 2025 FROM: SUBJECT: CHIEF OF STAFF WILLIAM SCHARF ASSISTANT TO THE PRESIDENT AND STAFF SECRETARY THE INSURRECTION ACT This memorandum is intended as a guide to the historical and legal landscape surrounding the Insurrection Act, a series of federal statutes that allow the President to utilize the military in contexts that are the traditional preserve of civilian law enforcement, and from which the military would typically be barred. The Insurrection Act serves as a break-the-glass exception to the traditional, general prohibition on the use of the military in the domestic setting, and was originally intended to provide the President with the ability to summon the military to suppress rebellions against either the federal government or against state and local governments. Since its passage in the early 1800s, usage of the Insurrection Act has varied, ranging from invocation at the outset of the Civil War, to suppressing instances of labor strife in the late 1800s, to enforcement of federal civil rights law over the objection of state governments in the South in the post-World War II era. Most recently, at the request of the state government of California, George H.W. Bush invoked the Act to aid in the suppression of the Rodney King riots in Los Angeles Significantly, though, invocation of the Insurrection Act is not needed to utilize military resources in many relevant contexts. National Guard units under State Active Duty or Title 32 status can be used for law enforcement purposes, the military can generally be used to protect federal personnel, property and functions, and military resources can also be utilized to assist civilian law enforcement forces in many instances. While most legal analysts agree that the Insurrection Act does provide the President with exceptionally broad powers and authority, essentially unreviewable by the other branches of government, it is likely that any invocation of the Act would result in vigorous litigation, potentially obviating any advantage to be gained in terms of the flexibility that it would provide to the President. 1. Law Enforcement, the Military, and Posse Comitatus In normal circumstances, enforcing the law within the United States is the responsibility of a mixture of local, state, and federal law enforcement officers. Numbering approximately 1</p> </div> </div> </div> <div class="g-doc-page g-doc-page_image" data-hasannotations="false" id="page-2"> <div class="g-doc-page_inner clearfix"> <div class="g-doc-page_paper doc-shell"> <img alt="Page 2 of 4" aria-describedby="page-2-text" class="g-doc-image lazyload" data-src="https://static01.nyt.com/newsgraphics/documenttools/e8946c53a81cb38e/2/output-2.png" height="2435" src="https://static01.nyt.com/packages/flash/multimedia/ICONS/transparent.png" width="1877"/> <noscript> <img alt="Page 2 of 4" aria-describedby="page-2-text" class="g-doc-image" height="2435" src="https://static01.nyt.com/newsgraphics/documenttools/e8946c53a81cb38e/2/output-2.png" width="1877"/> </noscript> <p class="g-doc-text" id="page-2-text">750,000, and belonging to agencies ranging from the smallest local police forces to massive federal agencies like the FBI, DEA, and ICE, we rely on these officers to safeguard our communities, investigate crimes, and make arrests. The federal military cannot generally be used law enforcement purposes in the United States, when acting under a military chain of command or military orders. The Posse Comitatus Act, 18 U.S.C. § 1385, establishes a default rule explicitly prohibiting the use of the United States military to enforce domestic laws. This rule applies as well to units of the National Guard when called up under Title 10 into federal service under federal command. In contrast, state governors may make use of their respective states' National Guard units to buttress their law enforcement personnel and resources. Governors can call up their own National Guard units to perform state missions using state resources. Under this State Active Duty status, there is no federal prohibition on the use of National Guard units for law enforcement purposes. Additionally, the federal government can call up National Guard into Title 32 status, under which they are federally funded, but still operate under state control. Similar to units in State Active Duty status, there is no federal prohibition on the use National Guard units operating under Title 32 orders for law enforcement purposes. 2. Allowable Uses of the Military The Posse Comitatus Act is also not absolute. It does not apply in cases where either the U.S. Constitution or other statutes allow for the use of the military in domestic contexts. For example, the Department of War has long maintained, across many administrations, that the military can be used to protect federal property and federal government functions, in cases where law enforcement is unable or unwilling to do so. This has typically been referred to as the "protective power." Similarly, Department of War policy has long allowed for the use of the military to assist state authorities in civil disturbance or national disaster contexts, typically when their assistance is requested and reimbursement to the federal government is agreed to pursuant to the Stafford Act or other statutory schemes. Additionally, since the 1970's, military personnel, equipment and resources have routinely been used to support law enforcement, under a series of statutes permitting what is generally referred 2</p> </div> </div> </div> <div class="g-doc-page g-doc-page_image" data-hasannotations="false" id="page-3"> <div class="g-doc-page_inner clearfix"> <div class="g-doc-page_paper doc-shell"> <img alt="Page 3 of 4" aria-describedby="page-3-text" class="g-doc-image lazyload" data-src="https://static01.nyt.com/newsgraphics/documenttools/e8946c53a81cb38e/3/output-3.png" height="2530" src="https://static01.nyt.com/packages/flash/multimedia/ICONS/transparent.png" width="1960"/> <noscript> <img alt="Page 3 of 4" aria-describedby="page-3-text" class="g-doc-image" height="2530" src="https://static01.nyt.com/newsgraphics/documenttools/e8946c53a81cb38e/3/output-3.png" width="1960"/> </noscript> <p class="g-doc-text" id="page-3-text">to "indirect assistance" or "permissible direct assistance." Among these, most notably, are statutes dealing with transnational organized crime and international counterdrug efforts. 3. The Insurrection Act A. Statutory Provisions The most far-reaching legal exceptions to the Posse Comitatus Act, though, fall within the Insurrection Act. The Insurrection Act, 10 U.S.C. §§251-255, originally enacted in 1807, is a statute that, when invoked, provides the President with extraordinary powers to use the military in several distinct domestic contexts, if the President first "by proclamation" orders "the insurgents to disperse": First, in the event of an insurrection in any state against its government, the President, at the request of a state legislature or governor, can use the military to suppress the insurrection. 10 U.S.C. § 251. Second, in the event that unlawful acts "make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings," the President can use the military to enforce the law and suppress the rebellion. 10 U.S.C. § 252. Third, in the event of "any insurrection, domestic violence, unlawful combination, or conspiracy" that makes enforcing the law impossible, or that results in any class of people being deprived of their rights, and which state authorities are unable or unwilling to resolve, the President can use the military to resolve the insurrection. 10 U.S.C. § 253(1). And lastly, wherever any such "insurrection, domestic violence, unlawful combination, or conspiracy... opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws," the President may use the military to resolve the insurrection. 10 U.S.C. § 253(2). B. Implications and Usage While § 251 is cabined by the requirement for a request from state officials, the § 252 and § 253 authorities are incredible broad, allowing for essentially unbounded use of the military in any state, with or without state consent or acquiescence, with the only predicate being a Presidential proclamation declaring that an insurrection exists. Many Presidents have invoked the Insurrection Act throughout American history. Abraham Lincoln invoked the Insurrection Act at the outset of the Civil War (indeed, the prosecution of the Civil War can be viewed as one long deployment of the military under the Act). Ulysses S. Grant similarly invoked the Insurrection Act during his suppression of the first Ku Klux Klan in the 1870s. In the late 1800's, the Insurrection Act was invoked on a number of occasions to deal with labor strife. And perhaps most notably in recent history, three Presidents invoked the 3</p> </div> </div> </div> <div class="g-doc-page g-doc-page_image" data-hasannotations="false" id="page-4"> <div class="g-doc-page_inner clearfix"> <div class="g-doc-page_paper doc-shell"> <img alt="Page 4 of 4" aria-describedby="page-4-text" class="g-doc-image lazyload" data-src="https://static01.nyt.com/newsgraphics/documenttools/e8946c53a81cb38e/4/output-4.png" height="2334" src="https://static01.nyt.com/packages/flash/multimedia/ICONS/transparent.png" width="1795"/> <noscript> <img alt="Page 4 of 4" aria-describedby="page-4-text" class="g-doc-image" height="2334" src="https://static01.nyt.com/newsgraphics/documenttools/e8946c53a81cb38e/4/output-4.png" width="1795"/> </noscript> <p class="g-doc-text" id="page-4-text">Insurrection Act to deal with the nonenforcement of federal civil rights law and court orders by state and local governments in the South. Lastly, and most relevantly, in 1992, at the height of the Rodney King riots in Los Angeles, George H.W. Bush invoked the Act to deploy troops to California, but did so after a request under § 251 from the Governor of California. 3. Litigation Ramifications In its seminal 1827 case Martin v. Mott, the Supreme Court held that the determination of when an emergency exists, necessitating the use of extraordinary powers by the President, is solely the province of the President and not subject to judicial review. While the case involved a different statute than the Insurrection Act, its reasoning is clearly applicable to the Act. However, since that time, in other analogous contexts, the Court has indicated that there might be room to review a President's determinations if the President's actions were taken in bad faith, or exceeded the range of honest judgment. Overall, while a President is highly likely to win a case at the Supreme Court over an invocation of the Insurrection Act-particularly with the current Court, which has been generally deferential to executive prerogatives—that does not mean that such an action would not result in vigorous litigation. We have consistently seen the same model of litigation during this Administration: left wing public interest firms or Democrat states rush to court in friendly, liberal-dominant judicial districts, obtain immediate equitable relief in the form of a temporary restraining order or preliminary injunction, and then drag their feet through appellate review. While we have consistently won the mine run of these cases, particularly at the Supreme Court, it can often take us weeks or months to unwind the initial legal damage. That same model would likely apply to litigation over an invocation of the Insurrection Act-a very high likelihood of both long-term success, but also short-term disruption.</p> </div> </div> </div> </div> </div> <div class="g-doc-footer"> <p class="sr-only">A PDF version of this document with embedded text is available at the link below:</p> <a class="g-download-link" href="https://static01.nyt.com/newsgraphics/documenttools/ab7a26e5d4b63268/402f052f-full.pdf" target="_blank"> <h2>Download the original document (pdf)</h2> </a> </div> </div> <div class="g-img-overlay_container" id="g-img-overlay"> <div class="g-img-overlay"> <div class="g-img-overlay_inner"> <img alt="Image of the selected page" class="g-img-image" src="https://static01.nyt.com/packages/flash/multimedia/ICONS/transparent.png"/> <div id="g-img-close"> <span class="g-img-icon-text">Close</span> <span class="g-img-icon g-close">×</span> </div> </div> </div> </div> </div> </div> </div>