That's a stretch don't you think, since presidents have been using the Insurrection Act since 1807 and 'W' extended the president's power under this Act? So to rule it unconstitutional, would mean that Jefferson, Jackson, Hayes, Grant, Cleveland, Wilson, Hoover, Roosevelt, Eisenhower, Kennedy, Johnson and Bush all acted unconstitutionally. I don't think so.
I'm going to try one more time. First ... if the use of the insurrection Act goes through the courts ... as it will today
@libertybele it will end up with the Supremes who will be given the opportunity to rule on its constitutionality and if that passes --- its application. I would prefer John Roberts, based on his recent voting record, not be give a chance to cast the deciding vote.
As for using the act ...here's its recent history (from 1967). I want you to note that in each case, the State requested the Federal assistance. This is one hell of a precedent supporting the "other" side should the continued use and application of the Act hit the courts:
Jul 1967 Lyndon B. Johnson Yes* Detroit, Michigan
Apr1968 Lyndon B. Johnson Yes* Washington, D.C.
Apr1968 Lyndon B. Johnson Yes* Baltimore, Maryland
Apr1968 Lyndon B. Johnson Yes* Chicago, Illinois
Sep1989 George H. W. Bush Yes* Saint Croix, United States Virgin Islands
May1992 George H. W. Bush Yes* Los Angeles County, California
* State Request for Assistance
As for Dubya ... In 2006, he considered intervening in Louisiana's response to Hurricane Katrina -- despite the refusal from Louisiana's governor,
but this was inconsistent with past precedent, politically difficult, and potentially unconstitutional. A provision of the John Warner National Defense Authorization Act for Fiscal Year 2007, added by an unidentified sponsor, amended the Insurrection act to permit military intervention without state consent, in case of an emergency that hindered the enforcement of laws. Dubya signed this amendment into law, but all fifty state governors issued a joint statement against it, and the changes were repealed in January 2008.
The precedent from 1967 through its last use in 1992 stands today: Activation of Federal forces under the Insurrection Act requires a request for assistance from the affected State.