From the flowered gardens of the White House on Monday evening, tear gas and helicopter noises in the background, Donald Trump launched his threat. If the American governors fail to "dominate the streets", then he himself will restore "law and order".
The country is in the grip of a historic surge of anger, after the homicide in Minneapolis of George Floyd, a black man asphyxiated by a white police officer. Protest movements have multiplied in major cities and some rallies have resulted in nightly fires and destruction.
"These are acts of internal terrorism," condemned the head of state. To "fix the problem quickly," he warned that he would not hesitate to send American soldiers to the streets. It has indeed the power: it is the Insurrection Act.
What is the Insurrection Act?
The Insurrection Act was enacted in 1807 by the President of the United States Thomas Jefferson. It is a federal law which authorizes the head of state to deploy the American army on the territory to restore order and ensure respect for federal authority. It is often taken in agreement with the State in difficulty, but it does not necessarily require its authorization.
Normally, public order is managed by each of the states, which themselves have a police force in addition to the National Guard. These authorities are "very well equipped, so it is exceptional for a president to appeal to the Insurrection Act," said Simon Grivet, a specialist in the history of law and justice in the United States and a lecturer at the University of Lille.
Once deployed, "the job of the military is to complete the application of civil laws, not to replace them - apply the same laws with the same sanctions," said Stephen Vladeck, professor of law at the University of Texas, on Twitter. .
Why does this device exist in the United States?
"The drafters of the Constitution understood that there would be circumstances in which the local authorities would not be able to protect the population and to apply the laws", explains Stephen Vladeck in The Atlantic.
The Insurrection Act "thus testifies to the power of the president, in case there is a need to supplement the force" of one of the many states that make up the country, adds Simon Grivet.
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“This law was designed to be used in an emergency situation, as a last resort. If we want to make a comparison with France, it is a kind of variation of the law on the state of emergency. "
Why is Trump threatening to invoke him?
For this specialist in the history of law and justice in the United States, this threat is "a coup de com from Trump, from politics." "Exactly like the scene on Monday evening, when he sent the police to disperse the peaceful demonstrators in front of the White House, all that to make 200 m on foot and to pose in front of a church with a bible", estimates it he.
“The violence was not repressed quickly enough for his taste. But if the states have allowed a lot to happen - the destruction, the scenes of looting that last for hours without the intervention of the police - it is also because they want to avoid new blunders! Explains Simon Grivet.
Donald Trump plays the law and order representative to gain popularity. But this position could prove counterproductive, argues the historian. “Governors are more popular than the president. This is what we saw with the coronavirus crisis: anti-containment demonstrations were in the minority and polls showed that the Americans had more confidence in their governors than in Trump. "
According to data shared by the Washington Post in May, 49 of 50 governors have indeed obtained significantly higher approval rates for their responses to the health crisis than the head of state.
“Historically, the real controls on the abuse of these authorities have been political. The insurgency law has not been invoked since 1992 - largely because local use of the military is generally unpopular, ”says Stephen Vladeck on Twitter.
How is the Insurrection Act applied?
In fact, the American president must first "issue a proclamation ordering the insurgents to disperse within a limited time," says a report by the Research Service of the Congress, dated 2006.
"If the situation is not resolved", then the head of state "can give an executive order to send troops". This order is the use of the Insurrection Act. “The president only needs to sign a decree. Its application is immediate, ”notes Simon Grivet.
What are the precedents?
The Insurrection Act was used a dozen times, mostly in the years 1950-1960, with the civil rights movement. One of the most famous episodes remains the one that marked Little Rock. In September 1957, in this city of Arkansas, nine black high school students were preparing to integrate for the first time a public establishment. But on the first day of school, a crowd of residents hostile to the end of school segregation and supported by the local authorities surrounded one of the young black women who went to school. Racist protests rage for three weeks.
An arm wrestling then engages between the governor of Arkansas, Orval Faubus, and the president of the United States, Dwight Eisenhower. The latter finally decides to federalize the National Guard, which will accompany the students for a year to protect them.
In 1962, President Kennedy did the same to integrate the first African-American student from the University of Mississippi. Three days of riots will follow.
The insurgency law was last used in 1992. On April 29 that year, a Los Angeles jury acquitted four white police officers. They were accused of having beaten a black American motorist, Rodney King, a year earlier, who had been arrested for speeding. The amateur video of his arrest had gone around the world.
The court decision causes unprecedented riots. After several days of violence, and at the request of the governor of California, President George HW Bush uses the Insurrection Act and authorizes the federal troops to restore order. Finally, in the history of the United States, this provision has mainly been used in cases of racial tension.