Trump keeps name-checking the Insurrection Act as way to deploy troops

There are few laws that President Trump name-checks more frequently than the Insurrection Act.

The law, a 200-year-old set of laws, grants emergency powers to place active-duty soldiers into civilian police duty; otherwise it is something prohibited by federal law.

Trump and his team have threatened to resort to this practice almost daily for weeks; most recently on Monday, after a reporter pressed the president about increased efforts to send federal troops to Democratic-led cities.

“The Insurrection Act – yeah, I mean I can do that,” Trump said. “You have many presidents.”

About a third of U.S. presidents have invoked statutes at some point; but history also shows that the law is used only in moments of extraordinary crisis and political turmoil.

The Insurrection Act was Abraham Lincoln’s sword against secessionists and Dwight D. Eisenhower’s shield around the Little Rock Nine, the first to desegregate schools in Arkansas.

Ulysses S. Grant invoked it more than a half-dozen times to thwart coups in government, halt racial massacres, and strangle the Ku Klux Klan in its cradle in South Carolina.

But it was also frequently used to crush labor strikes and stifle protest movements. The last time it was used, Defense Secretary Pete Hegseth was in grade school and most U.S. soldiers were not yet born.

Many now fear that Trump may use the law to suppress opposition to his agenda.

“Democrats were idiots for not amending the Insurrection Act in 2021,” said Kevin Carroll, a former senior adviser to the Department of Homeland Security during Trump’s first term. “It gives the president almost unlimited power.”

It also precludes most judicial investigations.

“This can’t even be challenged,” Trump boasted on Monday. “I don’t need to go there yet because I’m winning on appeal.”

If that streak ends, as legal experts say, some fear the administration’s next move will be the Insurrection Act.

“The Insurrection Act is very broadly worded, but there is a history of even the executive branch interpreting it narrowly,” said John C. Dehn, an associate professor at Loyola University Chicago School of Law.

The president first took action using the Insurrection Act against protesters in the summer of 2020. But Cabinet members and military advisers blocked the move amid efforts to use the National Guard to screen immigrants and the military to patrol the border.

“They have a real obsession with using the military domestically,” Carroll said. “This is too bad.”

In his second term, Trump instead relied on an obscure subsection of U.S. law to send federalized troops into blue cities, claiming it gave many of the same powers as the Insurrection Act.

Federal judges disagreed. Challenges to mandates in Los Angeles, Portland, Oregon, and Chicago have since clogged the appellate courts; Three West Coast cases are pending in the U.S. Court of Appeals for the 9th Circuit and one in the 7th Circuit, which has jurisdiction over Illinois.

The result is a growing knot of litigation that experts say will fall to the Supreme Court to resolve.

As of Wednesday, units in Oregon and Illinois were activated but not deployable. The Oregon case is further complicated by precedent in California, where federal troopers have been patrolling the streets with the approval of the 9th Circuit since June. This decision is scheduled to be repeated by the circuit on October 22 and may be reversed.

Meanwhile, what California troopers can legally do while they are federalized is also being reviewed; This means that even if Trump retains the power to call in troops, he may not be able to use them.

Scholars are divided on how the Supreme Court might rule on these issues.

“At this point, no court has expressed sympathy for these arguments because they are so weak,” said Harold Hongju Koh, a professor at Yale Law School.

Koh noted that the high court’s most conservative members, Clarence Thomas and Samuel A. Alito Jr., are unlikely to challenge the president’s authority to invoke the Insurrection Act, but even some Trump appointees, such as Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, are likely to oppose Chief Justice John G. Roberts Jr. He said he might be skeptical along with.

“I don’t think Thomas and Alito will stand up to Trump, but I’m not sure Gorsuch, Kavanaugh, Barrett, and Roberts could read this legislation to give him power. [those] forces.”

The Sedition Act almost completely prevents these fights.

“This would not only change the status quo, but it would fundamentally change the realities on the ground, because what the military would be authorized to do would be much broader,” said Christopher Mirasola, an assistant professor at the University of Houston Law Center.

Congress created the Insurrection Act as a safeguard against armed gangs attacking their neighbors and organized militias seeking to overthrow elected officials. But experts warn that the military is not trained to maintain law and order and the country has a strong tradition of opposing domestic deployments dating back to the Revolutionary War.

“The uniformed military leadership generally does not like to get involved in domestic law enforcement matters,” Carroll said. “The only similarity between police and soldiers is that they have uniforms and weapons.”

Today, the commander in chief can invoke the law in response to a call for help from state leaders, as George H. W. Bush did to quell the Rodney King insurrection in Los Angeles in 1992.

The statute can also be used to put an end to elected officials who refuse to enforce the law or gangs who circumvent the law; this is something Eisenhower and John F. Kennedy Jr. did to advocate for school integration.

Yet modern presidents have generally avoided invoking the Insurrection Act even in cases where there are strong legal justifications. George W. Bush considered introducing the law after Hurricane Katrina created chaos in New Orleans, but ultimately rejected it out of fear that it would exacerbate an already bitter power struggle between the state and federal government.

“The Justice Department has a lot of insight from attorneys general like Robert Kennedy or Nicholas Katzenbach saying, ‘We can’t invoke the Insurrection Act because the courts are open,'” Koh said.

Koh and other experts said that despite its extraordinary power, the law has guardrails that could make it difficult for the president to enforce it in the face of naked bikers or protesters wearing inflatable frog suits who recently confronted federal forces in Portland.

“There are still legal requirements that need to be met,” said Dehn, the Loyola professor. “The problem the Trump administration will face in applying [the law] Is this very practical, they like that “We can arrest those who break the law and prosecute those who break the law.”

This may be why Trump and his administration have not yet enacted the law.

“This reminds me of the lead-up to Jan. 6,” Carroll said. “People have a similar feeling, the feeling that an illegal, immoral and unwise order is about to be given.”

He and others say invoking the Sedition Act would shift widespread concerns about military policing of American streets into existential territory.

“If the Insurrection Act is being invoked in bad faith to send federal troops to beat up anti-ICE protesters, there should be a general strike in the United States,” Carroll said. “This is a real breaking glass moment.”

At this point, the best defense may come from the military.

“If a truly unwise and immoral order comes out… the generals of 17 years need to say no,” Carroll said. “They need to have the courage to put their stars on the table.”