Introduction

On the same day that the Military Commissions Act was signed into law, so were changes to the Insurrection Act. That the MCA, with its restrictions on habeas corpus is an erosion of our Constitutional rights, and a weakening of the foundation of our Republic was immediately clear to me. The changes to the Insurrection Act, buried in the 2007 military appropriations (H.R.5122, a.k.a. the "John Warner National Defense Authorization Act for Fiscal Year 2007") were a bit harder for me to understand.

I am writing this page in large part to help myself understand what the changes were and whether, taken with the MCA and other recent laws, signing statements, and legal interpretations, they are part of a major problem.

After I had the page well under way, I found that the Wikipedia also has a good analysis of the changes that H.R. 5122 made to the to the Insurrection Act, including a very useful flow-cart style presentation which may be clearer than my own analysis.

There are three versions of Section 333 of title 10 of the U.S. Code on this page. The first is my construct, based upon the text of H.R.5122 as reported in the Thomas database, and the text before modification as given at the Cornell Law School's Legal Information Institute. In it, I have tried to represent in a moderately comprehensible way, exactly what was changed, using HTMLs insert/delete text markup.

At the bottom of the page I have given the before and after texts using HTML's list and anchor tags. Clicking on links in either of those two versions should cause the section referred to to be highlighted in most modern browsers. This helped me to understand the changes in references within the law.

Visible Changes version of §333

§ 333. Major public emergencies;[1] Iiinterference with State and Federal law

(a) Use of Armed Forces in Major Public Emergencies— [2]

(1) The President, by using the militia or the armed forces, or both, or by any other means, may employ the armed forces, including the National Guard in Federal service, to— [3]

shall take such measures as he considers necessary to

(A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that—

(i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and

(ii) such violence results in a condition described in paragraph (2); or

(B) [4] suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy results in a condition described in paragraph (2). [5]

, if it—

(2) A condition described in this paragraph is a condition that—

(1)(A) so hinders the execution of the laws of that a State or possession, as applicable[6], and of the United States within the State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or

(2)(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

(3) In any situation covered by clause (1) paragraph (1)(B)[7], the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

(b) Notice to Congress— The President shall notify Congress of the determination to exercise the authority in subsection (a)(1)(A) as soon as practicable after the determination and every 14 days thereafter during the duration of the exercise of that authority. [8]

Footnotes

1. Major public emergencies
This change marks the expansion of the Insurgency Act to cover natural disasters, acts of terrorism and other public emergencies.
2. (a)…
For the most part these changes are just structural, to reflect the greater complexity of the statute.
3. …employ the armed forces…
Here we get a wording change that I suspect is significant. Whereas the original language distinguished the "militia" from the "armed forces", with no explicit reference to the National Guard, the new wording explicitly includes the National Guard as part of the "armed forces".

It may be that this is just a modernized wording, chosen to avoid ambiguities in the term "militia", or it may be an explicit sign of a trend towards centralized formalized power. After all, the disorganized citizen militia as exemplified by the Minutemen would today qualify as "unlawful combatants".

4. restore public order and enforce the laws…
This section represents the heart of the new law.

The changes that I see are that it:

  1. replaces "suppress insurrection" with "restore public order and enforce laws"
  2. adds natural disasters, public health emergencies and terrorism to the list of causes of disorder and violence
  3. adds a wildcard "other circumstances" to that list
  4. specifies that in these new circumstances domestic violence has occurred
  5. makes explicit that it is the President who determines the need
5. if…
This section is just structural.
6. or possession
Here's an interesting change. The original text applied only within the states. The new language expands it to US "possessions". This could just be in order to insure that the District of Columbia is covered, or foreseeing problems in Puerto Rico, Guam or the Virgin Islands.
7. clause/paragraph
The original wording referred to "clause 1", which in the new structure is now (2)(A). The new wording changes this to paragraph (1)(B). This both expands the reference to cover (2)(B) (previously "clause 2") and constrains it to not covering the new section (1)(A).

The full implications of this are not yet clear to me.

8. Notice to Congress
This section is wholly new and reflects Congress's desire for oversight and not the administration's centralized power model. While the Presidential signing statement for H.R.5122 doesn't specifically mention this section, the President did assert his right to withhold information from Congress, and the list of sections with such provisions is listed as "including", but not necessarily limited to those enumerated. Here's the relevant section of the signing statement:
A number of provisions in the Act call for the executive branch to furnish information to the Congress or other entities on various subjects. These provisions include sections 219, 313, 360, 1211, 1212, 1213, 1227, 1402, and 3116 of the Act, section 427 of title 10, United States Code, as amended by section 932 of the Act, and section 1093 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (Public Law 108-375) as amended by section 1061 of the Act. The executive branch shall construe such provisions in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.

I doubt that the current administration can be counted on to feel very strongly bound by §333(b).

§333 taken from Cornell Law School

§ 333. Interference with State and Federal law

The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—

  1. so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
  2. opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

§333 Changes taken from Thomas

Sec. 333. Major public emergencies; interference with State and Federal law
  1. Use of Armed Forces in Major Public Emergencies—
    1. The President may employ the armed forces, including the National Guard in Federal service, to—
      1. restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that—
        1. domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and
        2. such violence results in a condition described in paragraph (2); or
      2. suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy results in a condition described in paragraph (2).
    2. A condition described in this paragraph is a condition that—
      1. so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
      2. opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
    3. In any situation covered by paragraph (1)(B), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.
    4. Notice to Congress—
      The President shall notify Congress of the determination to exercise the authority in subsection (a)(1)(A) as soon as practicable after the determination and every 14 days thereafter during the duration of the exercise of that authority.