A 'Hamilton'-esque Scandal Helped Give Trump His Cudgel

by Gautham Rao

Gautham Rao is associate professor of American and legal history at American University in Washington and editor-in-chief of Law and History Review. He is author of National Duties: Custom Houses and the Making of the American State.

President Donald Trump pledged Monday to use the Insurrection Act of 1807 to deploy United States armed forces against protesters who have taken to the streets after the killing of George Floyd and the long history of racialized police violence against African Americans.

The way in which Trump made this announcement -- against the backdrop of tear gas and militaristic action taken against protesters on his doorstep exercising their First Amendment rights -- is itself a manifestation of unprecedented use of presidential power.

From a historical perspective, the act, which aimed to provide the mechanism for the federal government to quell an insurrection, is (along with its later amendments) one of the earliest and most significant accumulations of presidential power, dating back to the first years of the republic. But especially since the end of the Civil War, presidents have largely avoided invoking the act.

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After President Washington used the 1792 law to quell the Whiskey Rebellion, in which Western Pennsylvanian farmers obstructed a new federal tax, Congress amended the law by removing the requirement of a federal judge to request intervention.

This brings us to the Insurrection Act of 1807. Aaron Burr, who has gained newfound currency through the musical "Hamilton," played an important part. Burr's mysterious political intrigues led to his arrest and prosecution for treason.

Though historians remain unclear as to whether Burr was plotting an insurrection as he traveled through the West for two years, President Thomas Jefferson then asked Congress for more authority to deal with insurrections.

The resulting law, the Insurrection Act, allowed the president to call on federal troops as well as state militias to put down insurrections. This was a momentous step. Only 20 years after the founding, the framers' fears of a federal standing army had given way to the belief that presidents needed greater authority to use federal troops to police insurrections. Until the Civil War, the Supreme Court repeatedly confirmed the president's authority under the Insurrection Act. Amendments to the Insurrection Act in 1861 and 1871 only further expanded the president's authority to deploy federal troops or state militias.

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