Congress had delegated that authority to the President. Check the Insurrection Act.

April 07, 2026 - 19:58 UTC

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Put on my Thomas hat "the non delegation doctrine means that the insurrection act only gives the president the means to use the military to suppress an insurrection not the ability to decide if can insurrection is taking place"
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Doubtful that he would even agree Congress has authority to dictate how the President determines what’s an insurrection, but Martin v. Mott kinda settled (even though that involved an invasion). Congress has not taken a role determining whether an insurrection is occurring under the IA.
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Insurrection Act doesn't delegate the defining of insurrection

(It's also totally irrelevant to Section Three)
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