How the Insurrection Act and Militia Act Empower Trump to Cast the Die
In the closing days of 50 BC, the Roman
Senate declared that Julius Caesar’s term as a provincial governor was
finished. Roman law afforded its magistrates immunity to prosecution, but this
immunity would end with Caesar’s term. As the leader of the populares faction,
Caesar had many enemies among the elite optimates, and as soon
as he left office, these enemies planned to bury him in litigation. Caesar knew
he would lose everything: property, liberty, even his life.
Caesar decided it was better to fight for
victory than accept certain defeat. In January 49 BC, he crossed the Rubicon
River with his army, in violation of sacred Roman law, and begin a civil war. “Alea
iacta est,” said Caesar: The die is cast.
In the closing days of 2020 AD, the
American media has declared that Donald Trump’s term as president is finished.
As the leader of the deplorables faction, Trump has many
enemies among the elite irates, and as soon as he leaves office,
these enemies plan to bury him in litigation. Bill Pascrell, the Chairman of
the House Ways & Means Subcommittee on Oversight, has officially called for the prosecution of
President Trump for “government crimes” following his term in office. In his
thirst for vengeance, Pascrell has made it clear there will be no Nixonian
escape by pardon:
Donald Trump, along with his worst
enablers, must be tried for their crimes against our nation and Constitution.
Any further abuse of the sacred pardon power to shield criminals would itself
be obstruction of justice, and any self-pardons would be illegal.
Like Caesar, Trump now must fight for
victory or lose everything. Come January 2021, will Donald Trump decide to cast
the die and cross the Rubicon? He might.
The same people who warned us that Trump
is worse than Hitler will now scoff: “Donald Trump is no Caesar!” That’s
true. Trump is in a much better position than Caesar was.
Unlike Caesar, Trump can cross the
Rubicon legally. He need violate no sacred law. He has all of the
legal power he needs to act and win. Congress has given it to him. All he needs
to do is invoke the Insurrection Act.
Invoking the
Insurrection Act
During the 2020 summer protests and
riots, commentators on both the Left and Right argued about whether Trump would
use the so-called Insurrection Act against the crowds. Strangely, no one seems
to be considering the fact that Trump could use it now.
The history of the Insurrection Act
dates back all the way to 1797, and the legislative record is so long and tortured that it’s woeful to
contemplate. Suffice to say that in the 21st century, the Insurrection Act has
been pleasantly re-titled “The Enforcement of the Laws to Restore Public Order
Act” and codified in four sections of the US Code:
·
10
USC § 251 Federal Aid for State Governments
·
10
USC § 252 Use of Militia and Armed Forces to Enforce Federal Authority
·
10
USC § 253 Interference with State and Federal Law
·
10
USC § 254 Proclamation to Disperse
Of the four provisions, the most recent
and the most powerful is 10 USC § 253, which was written in 2006. This is the
one that liberal pundits always forget to mention when they blab about Posse
Comitatus and governors. It reads:
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.
That’s powerful language! Consider:
·
The
authority is vested solely in the President. He does not need
the invitation of state governors to intervene, nor does he need the approval
of the Supreme Court. Older provisions of the Insurrection Act required either
a governor or a judicial proceeding to authorize its use, but these limits were
purposefully removed by Congress in § 253.
·
There
is no time limit on the President’s activities. Older versions
of the Insurrection Act limited the use of force to brief periods of time and
then required legislative approval. Those limits, too, are also gone.
·
The
President is allowed to use any means that he (and
again, he needs no one else) considers necessary. This
includes using the armed forces (which enables him to bypass the Posse Comitatus Act) and using the militia
(which we’ll discuss in more detail below).
·
The
President’s ability to use force isn’t restricted to actual rebellion or
insurgency. He can act against merely unlawful combinations and conspiracies.
To be clear: If the President decides that a conspiracy
has deprived people of a right and believes that authorities
fail or refuse to protect the right, he can send in the troops.
In blunt terms, Congress has given the
power to President Trump to proclaim:
“I, President Trump, have determined
that a conspiracy has deprived 70 million Americans of their right to vote and
that the other authorities are refusing to protect this right. I therefore
order the suppression of this conspiracy by any means necessary.”
And with that, Trump will cross the
Rubicon.
Horror and Denial: He
Shouldn’t! He Wouldn’t!
If you are of libertarian leanings, you
are likely to feel horror: “Why on Earth did a free republic vest so much power
into one man?”
You should feel horror.
The Romans required a Senate vote to appoint a Dictator with emergency powers,
and that Dictator served a strict six-month term limit. In America, we’ve given
the President the right to decide when he should become a Dictator and for how
long he can retain his emergency powers.
This was certainly unwise; but it
is done. “Game over, man.” The power has been given. The power can be used.
And it probably will be used if the Democrats continue on
their foolish campaign to seek vengeance on Trump.
If you are in the grip of normalcy bias,
you are likely to be in denial: “Trump wouldn’t dare! The US Armed Forces would
remove him from office! The troops wouldn’t respond to his call!”
Pompey said the same about the Roman
legions. He was wrong. He was so wrong, in fact, that his decapitated head
ended up in a stylish gift box presented to Caesar as a present when he landed
in Egypt. Don’t be Pompey.
Now, I don’t expect beheadings
(just helicopters) but I do expect that the US Armed
Forces would obey Trump’s orders. Although he is not popular with the Pentagon,
Trump remains popular with actual soldiers,
especially with white middle-class men who make up a disproportionate number of the
infantry, armor, pilots, special forces, and other combat arms. (His support
among law enforcement personnel is even higher. The men with guns love Trump.)
But let’s assume the Armed Forces are
paralyzed, split, or neutral. If so, Trump still has millions of troops
available: The militia.
Calling Up the
Militia
The militia is defined by 10
U.S. Code § 246:
(a) The militia of the United States consists of all able-bodied
males at least 17 years of age and… under 45 years of age who are, or who have
made a declaration of intention to become, citizens of the United States and of
female citizens of the United States who are members of the National Guard.
(b) The
classes of the militia are—
·
(1) the organized militia, which consists of
the National Guard and the Naval Militia; and
·
(2) the unorganized militia, which consists
of the members of the militia who are not members of the National Guard or the
Naval Militia.
This is, again, an incredibly powerful
piece of legislation. Put into plain English, and ignoring a few minor
exemptions (postal workers, etc), Trump commands an unorganized militia
consisting of every able-bodied man between the ages of 17 and 45. The men
don’t need to be in the National Guard. They don’t need to be veterans. They
don’t need to be anything except 17 to 45 and able-bodied.
Remember that 10 USC § 253 grants the
President the power to use the militia to take such measures as he considers
necessary to suppress conspiracy. The militia is statutorily defined to include
the unorganized militia.
Therefore, when you combine 10 USC § 253
with 10 USC § 246, the President can call on every able-bodied male age 17 to
45 to take any means he deems necessary to suppress the conspiracy to deny
Americans their voting rights.
How many men is that? With 328M
Americans, 50% of them male, and 40% of them between 18 and 45, that’s 65M
militia members.
Organizing the
Unorganized
When Trump calls up the unorganized
militia, how does it get organized? What Federal statutes, regulations, and
case law govern what happens next? The answer… Well, there isn’t one.
“The Citizen-Soldier under Federal and State Law”,
a lengthy law review article published in 94 W. Va. L. Rev (1992), reviewed all
of the available statutes, regulations, and case law relating to the use of
citizen-soldiers. Turns out, there’s not much about the unorganized militia. In
fact, in the entirety of the 20th century, there has only been one case:
In 1946 Virginia Governor William
Mumford Tuck issued a call to the state's unorganized militia to come to the
aid of the state and to quell a labor dispute.
Let’s quickly look at what happened.
According to the Encyclopedia Virginia, the crisis began
when the International Brotherhood of Electrical Workers (IBEW) union announced
that its members would strike against the Virginia Electric and Power Company
unless its demands were met by a deadline of April 1, 1946.
At the time, “Virginia law divided its
militia into four classes: the National Guard, the Virginia Defense Force, the
naval militia, and the unorganized militia. This latter unit hypothetically
consisted of all able-bodied males between the ages of sixteen and fifty-five
who could be summoned by the governor if needed.” (Virginia law thus
mirrored 10 U.S. Code § 246.)
Two days before the strike deadline,
Governor Tuck “unilaterally decreed that all IBEW employees were summarily
drafted into the unorganized militia and ordered, on pain of court-martial, to
continue at their jobs.” Shortly thereafter, the dispute was resolved and
questions as to the constitutionality of Tuck's actions were left unresolved.
However, the next month, US President Harry S. Truman “used a similar tactic in
threatening to draft into the U.S. Army railway workers whose union, the
Brotherhood of Locomotive Engineers and Trainmen, was calling for a nationwide
strike; as in the VEPCO affair, the two sides reached a settlement at the
eleventh hour.”
So in the only recorded instance in the
last 100 years, an unorganized militia was called up, drafted, and
ordered to perform particular duties on pain of court-martial, unilaterally by
a governor, without any other legislative action, new statute, or court order.
And rather than condemn the governor, the US President thought this idea was so
awesome he used it himself the next month on the federal militia.
With no apparent limits whatsoever, the
Insurrection Act combined with the Militia Act isn’t just a blank check; it’s a
blank check book. Apparently our government can call on its citizens to do
whatever it wants! I would protest this, but I’m currently on lockdown.
The Balance of Forces
Let’s return to our earlier assumption
that Trump has invoked the Insurrection Act and then used it to call up the
militia. Let’s continue to assume that the US Armed Forces are either paralyzed
with indecision, split in their loyalties, or opting to stay neutral, and just
look at the militia. So who is going to fight?
Now, no matter what the law says, not
every eligible militia man would respond to Trump’s call. But it seems likely
there’d be a large number who did respond, and an even larger number of
noncombatant supporters. Right now, 70% of Republicans don’t think the
election was free and fair. If Trump calls on the unorganized militia to save
the Republic from voter fraud, a militia will come.
So too would an anti-militia or
resistance. In fact, lots of people who are willing to fight are fighting on
the streets already. It seems likely that if Trump crosses the Rubicon, he will
trigger a civil war, just like Caesar triggered a civil war.
When Caesar crossed the Rubicon, he had
only one legion against the might of Rome. What would Trump and his opponents
be able to muster?
Let’s assess the balance of
forces. Trump’ voters consisted of 58% of 98M
white men; 55% of 98M white women; 36% of 30M Hispanic men, 28% of 30M Hispanic
women, 20% of 22M black men, and 9% of 22M black women.
Meanwhile, the demographics of gun ownership in the US are
as follows: 48% of white men own a gun, while only 24%
of white women own a gun, 24% of non white men, and 16% of
non-white women.
Assuming that women largely don’t fight
(which is the historical norm), the balance of forces looks like this:
·
98
million white men x 58% Trump voters x 48% gun owners x 40% 18-45 = 11 million
white gun-owning Trump militia
·
36
million Hispanic men x 30% Trump voters x 24% gun owners x 40% 18-45 = 1
million Hispanic gun-owning Trump militia
·
22
million black men x 20% Trump voters x 24% gun owners x 40% 18-45 = 0.4 million
black gun-owning Trump militia
·
98
million white men x 42% Biden voters x 48% gun owners x 40% 18-45 = 8 million
white gun-owning anti-Trump resisters
·
36
million Hispanic men x 70% Biden voters x 24% gun owners x 40% 18-45 = 2.4 million
Hispanic gun-owning anti-Trump resisters
·
22
million black men x 80% Biden voters x 24% gun owners x 40% 18-45 = 1.7 million
black gun-owning anti-Trump resisters
This basic math suggests 12.4 million
potential Trump gun owners and 12.1 million potential anti-Trump gun owners.
However, it’s likely the odds would
stack more favorably to Trump. Although only 39% of Americans are Republicans, gun owners
are actually 64% Republican. In other words, those who own
guns are disproportionately Republican by a factor of 1.64! If we replace the
percentage of Trump voters with the percentage of Republican gun-owners, then
the balance of forces changes to 17.6M pro-Trump and 6.9M anti-Trump.
3% of Americans fought in the
Continental Army during the Revolution. If 3% respond to the call for the
militia, that would mean between 450,000 to 700,000 militia and 210,000 to
450,000 resisters. To put that in context, there’s only 60,000 soldiers in the
Infantry Branch of the US Army.
Of the militia who do respond, those on
Trump’s side will be much better trained. As noted earlier, the military’s
combat arms are disproportionately white, with the infantry being 79% white and
only 9% black. Since the United States has now been at war for 20 years, there
are millions of combat veterans, and the vast majority of those who fought as
infantry are likely to be on Trump’s side. Likewise, the vast majority of LEO
veterans seem likely to fight on Trump’s side, if they chose a side.
The Oathkeepers, a hundred-thousand-strong
organization made up of military and law enforcement veterans and
personnel, has already stated that it will refuse to
recognize a Biden presidency. “We’ll be very much like the founding fathers.
We’ll end up nullifying and resisting,” said founder Stewart Rhodes.
The founding fathers resisted, of
course, with guns.
This Is Not a Drill
Meanwhile, those in the grip of normalcy
bias still think that the ‘nuclear option’ is for Trump to ask the state
legislatures to appoint some electors to the college. Using legislative ballots
isn’t the nuclear option. It’s barely a grenade. The nuclear option is
Insurrection Act and the Militia.
Left-wing media is a parade of ostriches
marching heads down in the sand. “Trump will lose in a landslide!” Wrong.
“Trump has already lost!” Wrong. “There is no evidence of fraud!” Wrong. “Civil
War could never happen!” Wrong. Maybe it won’t happen. The
future is unpredictable. But it really, really could happen.
If I had told you last November that in
the next 12 months the US would endure the worst pandemic since Spanish Flu,
AND the worst depression since the Great Depression, AND the worst
Constitutional crisis since the Civil War, AND the worst civil unrest since the
summer of 1968, AND an unprecedented nation-wide lockdowns that led to the end
of sports, bars, restaurants, movies, in-class attendance at school, and
commuting to work, AND that it would culminate in the World Economic Forum
announcing a Great Reset to the global economy to lock in this new normal,
would you have believed me? No, you’d have laughed me off as a tinfoil nutjob.
Yet here we are.
To repeat a statistic from earlier: 70%
of Republicans think that the most recent election is illegitimate. In a
functioning democracy, if 70% of the second-largest political party in the
country thinks an election has been stolen, the elites come together to
cooperate to investigate and restore legitimacy in the eyes of the voters.
In the US, that’s not happening.
Instead, an enormous machine, consisting of tech oligopolies, liberal media,
watchdog groups, and partisan activists, is doing everything it can to silence
and suppress the dissenters. Simultaneously, this same machine is making enemy
lists and actively declaring that when it wins, it will be taking vengeance,
against Trump, against everyone who helped him, and against everyone who voted
for him.
This is not a drill. This is
where we are. If Trump is standing on the banks of the Rubicon, it’s
because the leftist machine has purposefully widened the Rubicon River until it
reaches his feet.
Clear-headed left-wingers — if there are
any left — need to step in and deescalate the threats against Trump and his
supporters, and listen to 70 million Americans clamoring for fair and
fraud-free voting. There is still time.
Otherwise, as another great military
leader put it, “when on death ground, you must fight.”
Update (1230AM 11/20/20): This afternoon, Trump’s legal team made
serious allegations of election fraud in the Presidential election and
indicated their intent to pursue these allegations in as many as 10 states. In
response, Democrat thought leaders have declared the litigation efforts to be
an attempted coup, begun a #sedition hashtag on Twitter, and written op-eds
demanding felony charges against the entire legal team for treason — a legal
team led by one of the nation’s most respected prosecutors and mayors in
history! Taking the position that litigating before the Supreme Court is
sedition is a perfect example of purposefully widening the
Rubicon River until it reaches Trump’s feet.
