Donald Trump has once again threatened to invoke the Insurrection Act, a law authorizing the president to deploy military forces on US soil, as a means to control the mobilization of the national guard as courts and governors in Democratic-led cities continue to stymie his attempts.
But can he do that, and what does it mean? Here’s what to know about the centuries-old law.
What is the Insurrection Act?
The Insurrection Act is a US federal law that gives the president the power to deploy the military or federalize national guard troops inside the US to quell domestic uprisings.
The law is commonly referred to as the Insurrection Act of 1807, the year Thomas Jefferson, the president, signed it into law. But the modern-day Insurrection Act is an amalgamation of statutes passed between 1792 and 1871 outlining the role of US military forces in domestic law enforcement.
Generally, federal military forces are not allowed to carry out civilian law enforcement duties against US citizens except in times of emergency.
The law enables troops to take part in domestic law enforcement activities such as making arrests and performing searches, functions they are generally otherwise prohibited from engaging in.
Steve Vladeck, a professor at the Georgetown University Law Center, said national guard troops cannot legally engage in ordinary law enforcement activities unless Trump first invokes the Insurrection Act, which authorizes the president to use military forces domestically in the event of an insurrection or rebellion.
Vladeck said the move raises the risk that troops could end up using force while filling that “protection” role. The move could also be a precursor to other, more aggressive troop deployments down the road, he wrote on his website.
“There’s nothing these troops will be allowed to do that, for example, the Ice officers against whom these protests have been directed could not do themselves,” Vladeck said.
When has the Insurrection Act been used?
The act has been invoked on dozens of occasions. It and related laws were used during the civil rights movement in the 1960s to protect activists and students desegregating schools. President Dwight Eisenhower sent the 101st airborne to Little Rock, Arkansas, to protect Black students integrating Central high school after the state governor, Orval Faubus, activated the national guard to keep the students out.
Since the civil rights movement of the 1960s, however, its use has become “exceedingly rare”, according to a report by the Congressional Research Service.
George HW Bush used the act to respond to riots in Los Angeles in 1992 after four white police officers filmed beating the Black motorist Rodney King were acquitted, leading to deadly riots. California’s governor, Pete Wilson, had requested military aid from the president to quell the violence.
What’s Trump’s track record with the Insurrection Act?
Trump threatened to invoke the act in June when California governor Gavin Newsom sued Trump to block the use of military forces to accompany federal immigration enforcement in Los Angeles, calling it an “illegal deployment”.
In 2020, Trump asked governors of several states to deploy their national guard troops to Washington DC to quell protests that arose after George Floyd was killed by a Minneapolis police officer. Many of the governors agreed, sending troops to the federal district.
At the time, Trump also threatened to invoke the act for protests following Floyd’s death but never actually did so.
While campaigning for his second term, Trump suggested that would change. Trump told an audience in Iowa in 2023 that he had been prevented from using the military to suppress violence in cities and states during his first term, and said that if the issue came up again in his next term, “I’m not waiting.”
Trump has also promised to deploy the national guard to help carry out his immigration enforcement goals.
Trump said on Monday that so far it had not been necessary to use the act but that he would consider doing so.
“We have an Insurrection Act for a reason,” Trump said. “If people were being killed and courts were holding us up, or governors or mayors were holding us up, sure, I’d do that.”
Why is the Insurrection Act so controversial?
There is a long American tradition of keeping the federal military out of civilian affairs.
The nation’s founders, having witnessed abuses by the British military during colonial times, feared that giving the president unlimited control over troops would erode civil liberties and the democratic process. Under the constitution, governors generally have the authority to maintain order within state borders.
These principles are embodied in the Posse Comitatus Act, an 1878 law that generally barred the military from participating in civilian law enforcement activities. The Insurrection Act functions as a statutory exception to the Posse Comitatus Act.
Civil rights groups have long warned that the Insurrection Act gives the president broad authority to use the military as a domestic police force in ways the founding fathers did not intend.
Can a court stop Trump from using the Insurrection Act?
Courts have been reluctant to second-guess a president’s military declarations, and the ninth US circuit court of appeals recently said the president’s decision to send in the military is entitled to “great level of deference”.
But some experts say this deference does not completely stop courts from reviewing the president’s decisions. An Oregon federal judge recently ruled against Trump’s decision to send troops to protests in Portland by invoking a separate law, section 12406 of the US code, writing that “‘a great level of deference’ is not equivalent to ignoring the facts on the ground”.
