As court battles have intensified around President Donald Trump’s efforts to deploy National Guard troops in U.S. cities, he’s weighing another option that could allow him to significantly expand the military’s domestic presence.
Invoking the centuries-old Insurrection Act could give the president wider latitude to send the military into states over the objections of state and local officials, and allow those troops to take a more active role than National Guard troops are permitted now.
Mr. Trump’s controversial threats to use the act – which is reserved for cases of insurrection or rebellion – comes as his administration encounters legal and political challenges to its efforts to involve the National Guard in a campaign against crime and illegal immigration.
Why We Wrote This
President Donald Trump says he might invoke the Insurrection Act to assist his efforts to deploy National Guard troops. The law, meant to stifle rebellions, gives the president greater leeway but comes with restrictions, and its use could draw lawsuits.
The president and his team appear to see the Insurrection Act as a potential way to sidestep the legal cases slowing his plans down.
The administration’s deployment of National Guard troops to Los Angeles, Washington, D.C., and Memphis, and attempts to send service members to Chicago and to Portland, Oregon, have resulted in lawsuits from most of those cities and from the states of California, Illinois, and Oregon. Multiple federal district and appellate courts have temporarily halted Mr. Trump’s plans or have ruled against him, and the U.S. Supreme Court is weighing whether to respond to an emergency appeal from the Trump administration asking it to permit a deployment in Chicago.
Separately, on Friday, a federal judge in Oregon issued a permanent injunction blocking the president from deploying the National Guard in Portland. The Trump administration is expected to appeal this decision as well.
Here’s a look at what the Insurrection Act says and how President Trump could use it.
What is the Insurrection Act?
The Insurrection Act, passed in 1807, allows the president to deploy the military to suppress a rebellion or enforce the rule of law in emergencies. It is the main exception to the 1878 Posse Comitatus Act, another law that normally forbids members of the military from carrying out domestic law enforcement tasks, such as arresting civilians. Presidents have generally treated the Insurrection Act as an option to be used rarely – yet some scholars worry the law’s ambiguity opens the door for greater use.
The law has three sections outlining different scenarios in which the president can deploy troops. One is if a state governor requests these troops; another is if the president determines courts are no longer functioning in a state to enforce federal law.
The third and broadest condition allows the president to deploy the military to a state if a situation there is causing some people to be deprived of their constitutional rights, and if state or local authorities aren’t able to enforce those rights. The president could do this even if a state’s governor objects.
The Insurrection Act is different from martial law, which generally means imposing military law on civilians. Troops deployed under the Insurrection Act still have to obey regular U.S. laws, and can only arrest people who are breaking those laws.
“It doesn’t give the president complete power,” says Walter Olson, a senior fellow at the Cato Institute. “The Insurrection Act does not change what is legal and what isn’t legal.”
However, the law does give the president considerable flexibility. Unlike some other emergency laws, the Insurrection Act doesn’t come with a time limit or any requirement to consult Congress.
When has it been used?
U.S. presidents have used the Insurrection Act 30 times, ranging from the country’s early days to the late 20th century, according to an analysis by the Brennan Center for Justice.
George Washington used a precursor of the act in 1792 to suppress an uprising known as the Whiskey Rebellion, and Abraham Lincoln used it when Southern states seceded from the Union at the start of the Civil War.
In 1957, Dwight Eisenhower sent members of the 101st Airborne Division to protect nine Black high school students from racial violence as they attended classes in Little Rock, Arkansas.
The last use was 1992, when California’s governor asked George H.W. Bush to send troops to quell widespread riots in Los Angeles after four police officers were acquitted of beating Rodney King, an unarmed Black man, during a traffic stop.
“Typically, when presidents have invoked the Insurrection Act, it’s been a passing thing” that ends quickly, says Mr. Olson.
How might it be used now?
In recent weeks Mr. Trump has repeatedly hinted at invoking the Insurrection Act. During a meeting with military leaders on Sept. 30, he suggested cities could be used as “training grounds” for the military.
“We have an Insurrection Act for a reason,” Mr. Trump told reporters the following week, adding that he would enact it if people were being killed and courts, governors, or mayors were “holding us up.”
In a Newsmax interview that same day, the president called the situation in Portland “pure insurrection.” Ongoing protests outside of Portland’s Immigration and Customs Enforcement field office have drawn crowds of a few hundred. Law enforcement officers have fired pepper spray into the crowd, and protesters have used pepper spray and thrown rocks at agents and the building, according to court documents. Other parts of the city are largely peaceful.
More recently, Mr. Trump claimed invoking the Insurrection Act would result in “no more court cases” and spoke of the act while discussing San Francisco, where he has also called for deployment of the National Guard before backing off those plans.
“Don’t forget, I can use the Insurrection Act,” he told Fox News reporter Maria Bartiromo during an Oct. 19 interview. “And that’s unquestioned power.”
Mr. Trump told Ms. Bartiromo that he prefers to deploy the National Guard for now. Unlike under the Insurrection Act provisions, National Guard members currently can’t make arrests and can only support law enforcement officers.
Mr. Olson suggests the president might hold back on invoking the Insurrection Act so that he can keep it as a threat.
“Trump likes to have this idea hanging over people, and likes to make them think that fighting him is banned because he always has something else up his sleeve,” he says.
What are the legal questions and implications?
Several states have challenged Mr. Trump’s deployment of the National Guard in court, with some temporary success. States might try the same tactic against the Insurrection Act, says Laura Dickinson, a professor at the George Washington University Law School.
But “the challenge is that for the Insurrection Act, there’s language in the statute that suggests that the president has relatively broad discretion,” she says – broader than the language in a section of Title 10 of the U.S. Code, the law Mr. Trump is currently invoking to deploy the National Guard.
The section of the Insurrection Act that many experts say Mr. Trump is most likely to invoke would allow him to deploy troops in a state if he “considers it necessary” to suppress any “insurrection, domestic violence, unlawful combination, or conspiracy” that prevents the execution of laws or deprives people of their rights.
The law does not define terms like “insurrection,” and Ms. Dickinson says this broad language leaves the president with wide latitude to decide whether these conditions are taking place, and if sending in the military is “necessary.”
