Topline
As court rulings stymie President Donald Trump’s ability to send the military to Democratic-run cities, the administration is reportedly considering having the president invoke the Insurrection Act, a rarely-used law that gives presidents much more authority to use the military on U.S. soil—though that power is not absolute.
The Trump administration is increasingly considering invoking the act, NBC News reported Wednesday, after Trump told reporters Monday he’d use the law “if it was necessary.”
The move comes after Trump has repeatedly sought to deploy federal troops to Democratic-run cities—most recently Portland, Oregon, and Chicago—but had courts rule against his efforts and block the deployments, with two more courts set to consider the deployments’ legality Thursday.
The Insurrection Act states that in the case of “unlawful obstructions, combinations, or assemblages” or “rebellions” against the government that make it “impracticable” to enforce the law through normal means, presidents can deploy federal troops and use them “as he considers necessary to enforce those laws or to suppress the rebellion.”
The law has been invoked approximately 30 times over the course of U.S. history, and while it was most recently used in 1992 in response to riots in Los Angeles, the last time it was invoked without a state governor asking the president to use it—as would be the case here—was during the Civil Rights movement in the 1960s.
While presidents are typically banned from using the military for domestic law enforcement purposes under a different law, the Posse Comitatus Act, the Insurrection Act is the primary workaround for those limitations, allowing presidents to have broader authority over the military in the U.S. by invoking it.
That means Trump would face fewer legal barriers if he were to invoke it, and the military would have heightened authority, should he believe there’s a rebellion or insurrection that justifies invoking the law.
Two court hearings are taking place Thursday to determine whether Trump can deploy National Guard troops to Portland and Chicago, as the president has sought to do. A court has already blocked the deployment of troops in Portland, but a federal appeals court will consider whether that block should be lifted and Trump should be allowed to send troops to Oregon. Trump has not yet invoked the Insurrection Act, so these court challenges concern whether Trump is allowed to send troops under the more limited authority he has when the Insurrection Act is not being used. Should the courts rule against him and say he can’t deploy troops, that could then make it more likely Trump will invoke the Insurrection Act.
It’s unclear, but possible. Citing anonymous sources, NBC reports the Trump administration has held “increasingly serious discussions” about invoking the Insurrection Act in recent days, after previously exploring the option in more hypothetical terms. Invoking the act is not expected to come “imminently,” however, NBC suggests, and would likely only come after the Trump administration has exhausted its other options on deploying troops to cities. Trump has suggested he could be inclined to invoke the law if courts rule against him. “If people were being killed and courts were holding us up or governors or mayors were holding us up, sure, I’d do that,” Trump said Monday, referring to using the Insurrection Act.
Invoking the Insurrection Act creates an exception to the rule typically banning the military from performing domestic law enforcement actions. Most notably, that would mean the military would be able to arrest people for any perceived violations of federal law, along with other actions—like setting up blockades or apprehending protesters—that are typically done by law enforcement.
Though the Insurrection Act gives presidents broad authority to use the military on U.S. soil, “that discretion is not infinite,” Joseph Nunn, a counsel in the Brennan Center’s Liberty and National Security Program who studies domestic use of the U.S. military, told Forbes in August. Troops are allowed to enforce federal laws, but “there is no circumstance in which the President can deploy the military into a city and a state like New York or Chicago and direct the military to enforce state and local law,” Nunn said.
The Supreme Court has given the president wide latitude to deploy federal troops under the Insurrection Act, ruling in the 1827 case Martin v. Mott that the decision on deploying troops to suppress insurrections “belongs exclusively to the President.” Justices have since said there are instances where courts can second guess the president’s actions, Nunn noted for the Brennan Center, such as if the president deploys troops in bad faith or deploys troops in a way that’s clearly unlawful. “What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions,” the Supreme Court wrote in a 1932 ruling, arguing “there is a permitted range of honest judgment as to the measures to be taken in meeting force with force.” The Supreme Court also said in 1932 that courts can consider what the military does once it’s deployed. That means even if Trump was lawfully able to send the military into a Democratic-led city, if those troops did something that violated the law, the courts could still step in. Trump officials have been concerned that invoking the Insurrection Act now could lead to the invocation being struck down at the Supreme Court, NBC reports, due to not being sufficiently justified, and are “focused on charting a legal pathway” for using the law that could withstand a court challenge.
The president has heightened his attacks on Democratic-led cities in his second term, sending National Guard troops into Los Angeles and Washington, D.C., earlier this year before later announcing his intention to bring the military to Oregon and Illinois. Trump announced Sept. 27 his intention to deploy the National Guard in Portland, saying he had authorized the military to use “full force, if necessary” to quell purported large-scale protests against his immigration policies. A federal judge went on to block the troops’ deployment, including stopping National Guard troops from any other state from being sent to Oregon. Trump then successfully deployed National Guard troops from Texas to Chicago, despite opposition from local officials and Illinois Gov. J.B. Pritzker, a Democrat. Trump has suggested he wants to send troops to more cities throughout the U.S., saying in August he was “going to make our cities very, very safe.” The president reportedly considered invoking the Insurrection Act in his first term to quell racial justice protests after the 2020 murder of George Floyd, but never did so. NBC reports Trump went on to regret that decision, perhaps making him more inclined to now use the law in his second term.