Trump keeps naming Insurrection Act as way to deploy troops

Few laws have been called out by President Trump more frequently than the Insurrection Act.
The 200-year-old act gives active-duty soldiers emergency powers to assume civilian police duties, which is prohibited by federal law.
Trump and his team have threatened to invoke the act almost daily for weeks — most recently on Monday after a reporter pressed the president on escalating efforts to send federal troops to Democratic-led cities.
“The Insurrection Act — yeah, I mean, I can do that,” Trump said. “A lot of presidents have.”
About a third of U.S. presidents have invoked these statutes at some point, but history also shows that the law is only used in moments of extraordinary crisis and political unrest.
The Insurrection Act was Abraham Lincoln’s sword against secessionists and Dwight D. Eisenhower’s shield around the “Little Rock Nine”, young black students who were the first to desegregate schools in Arkansas.
Ulysses S. Grant invoked it more than a half-dozen times to prevent a statehouse coup, stop a genocide and nip the Ku Klux Klan in the cradle of South Carolina.
But it is also often used to suppress worker strikes and stifle protest movements. The last time this statement was invoked, Defense Secretary Pete Hegseth was in elementary school and most American soldiers had not yet been born.
Now, many fear Trump may invoke the law to quell opposition to his agenda.
“Democrats were stupid enough not to amend the Insurrection Act in 2021,” said Kevin Carroll, a former senior adviser at the Department of Homeland Security during Trump’s first term. “It gives the president virtually unlimited power.”
It also excludes most judicial review.
“It can’t even be challenged,” Trump boasted on Monday. “I haven’t had to go there yet because I won the appeal.”
If, as legal experts say, the streak cools, some fear the Insurrection Act will be the government’s next move.
“The language of the Insurrection Act is very broad, but historically even the executive branch has interpreted it narrowly,” said John C. Dehn, an associate professor at Loyola University Chicago School of Law.
The president first proposed using the Insurrection Act to suppress protesters in the summer of 2020. But members of his cabinet and military advisers blocked the move as they sought to use the National Guard for immigration enforcement and the military to patrol the border.
“They’re really keen on using the military domestically,” Carroll said. “It’s sinister.”
In his second term, Trump instead relied on an obscure provision in the U.S. Code to flood blue cities with federal soldiers, claiming it gave many of the same powers as the Insurrection Act.
A federal judge disagreed. Challenges with deployments in Los Angeles, Portland, Ore., and Chicago have since dogged appeals courts, with three West Coast cases pending in the U.S. 9th Circuit Court of Appeals and one case pending in the 7th Circuit Court of Appeals, which has jurisdiction over Illinois.
The result is an increasing number of lawsuits being settled, which experts say will be settled by the Supreme Court.
As of Wednesday, troops in Oregon and Illinois were activated but unable to deploy. The case in Oregon is complicated by precedent in California, where federal troopers have been patrolling the streets since June with the support of the 9th Circuit. The ruling will be reviewed by the circuit court on Oct. 22 and could be overturned.
Meanwhile, what California soldiers are legally allowed to do during federalization is also under scrutiny, meaning Trump may not be able to use them even if he retains the power to call in troops.
Scholars are divided over how the Supreme Court rules on these issues.
“Currently, no court … has been sympathetic to these arguments because they are so flimsy,” said Harold Hongju Koh, a professor at Yale Law School.
Koh listed the court’s most conservative members, Clarence Thomas and Samuel A. Alito Jr., as unlikely to oppose the president’s authority to invoke the Insurrection Act, but said even some of Trump’s appointees — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — and Chief Justice John G. Roberts Jr. may also be skeptical.
“I don’t think Thomas and Alito will stand up to Trump, but I’m not sure Gorsuch, Kavanaugh, Barrett, and Roberts can read this statute and give him the power [those] that power”.
The Insurrection Act almost entirely sidestepped these battles.
Christopher Mirasola, an assistant professor at the University of Houston Law Center, said this “will not only change the workings of the law, but it will fundamentally change the facts we have because the military will be authorized to do a much broader range of things.”
Congress created the Insurrection Act as a foolproof measure in response to armed mobs attacking neighbors and organizing militias seeking to overthrow elected officials. But experts warn that the military is not trained to maintain law and order and that the country has a strong tradition against domestic deployments dating back to the War of Independence.
“Uniformed leadership in general doesn’t like to get involved in domestic law enforcement issues at all,” Carroll said. “The only similarity between the police and the military is that they both have uniforms and guns.”
Now, the commander in chief can invoke the law to respond to requests for help from national leaders, as George H.W. Bush did when he suppressed the 1992 Rodney King uprising in Los Angeles
The statute can also be used to launch apocalyptic attacks against elected officials who refuse to enforce the law or mobs that make it impossible — something Eisenhower and John F. Kennedy Jr. did to defend school integration.
Still, modern presidents typically avoid using the Insurrection Act, even when there is a strong legal basis for doing so. George W. Bush considered invoking the law after Hurricane Katrina caused chaos in New Orleans, but ultimately declined out of concern that it would exacerbate an already bitter power struggle between state and federal governments.
“There were a lot of internal opinions at the Department of Justice, with attorneys general like Robert F. Kennedy or Nicholas Katzenbach saying, ‘We can’t invoke the Insurrection Act because the courts are open,'” Coe said.
Despite the law’s extraordinary powers, Hsu and other experts say it has limitations that could make it harder for the president to invoke it when faced with naked bicyclists or protesters wearing inflatable frog suits, who federal forces recently suppressed in Portland.
“Statutory requirements still have to be met,” said Dehn, the Loyola professor. “The problem that the Trump administration will have when it invokes the law is [the law] Isn’t it very practical, they yes Ability to arrest and prosecute offenders. ”
That’s likely why Trump and his administration haven’t invoked the act yet.
“It reminds me of what it was like before January 6th,” Carroll said. “There was a similar feeling, a feeling that an illegal, unethical and ill-advised order was about to be issued.”
He and others say invoking the Insurrection Act would shift widespread concerns about military policing on America’s streets into existential territory.
“If someone maliciously invokes the Insurrection Act to send in federal troops to suppress anti-ICE protesters, then there should be a general strike in America,” Carroll said. “This is truly a glass-breaking moment.”
Until then, the best defense may come from the military.
“If an unwise and unethical order does come up … the 17-year generals need to say no,” Carroll said. “They have to have the courage to put their stars on the table.”