As legal battles intensify over President Donald Trump’s efforts to deploy National Guard troops in American cities, he is considering another option that could allow him to significantly expand the local military presence.
Invoking the centuries-old Insurrection Act could give the president broader latitude to send the military into states over the objections of state and local officials, allowing those forces to take a more active role than he now allows National Guard troops.
Mr. Trump’s controversial threats to use that law — reserved for cases of insurrection or insurrection — come as his administration faces legal and political challenges to its efforts to involve the National Guard in a campaign against crime and illegal immigration.
Why did we write this?
President Donald Trump says he may invoke the Insurrection Act to aid his efforts to deploy National Guard troops. The law, aimed at stifling rebellion, gives the president more leeway but comes with restrictions, and using it could lead to lawsuits.
The president and his team appear to view the Insurrection Act as a potential way to avoid the legal issues slowing down his plans.
The administration’s deployment of National Guard troops to Los Angeles, Washington, D.C., and Memphis, and its attempts to send service members to Chicago and Portland, Oregon, have prompted lawsuits from most of those cities and from California, Illinois and Oregon. Several federal district and appeals courts have temporarily blocked Mr. Trump’s plans or ruled against him, and the U.S. Supreme Court Weighing whether to respond Based on an emergency appeal from the Trump administration asking it to allow the deployment to Chicago.
Separately, on Friday, a federal judge in Oregon issued an order Permanent order Ban the President from deploying the National Guard to Portland. The Trump administration is expected to appeal this decision as well.
Here’s a look at what the Insurrection Act provides and how President Trump could use it.
What is the Insurrection Law?
the Insurrection lawThe law, passed in 1807, allows the president to deploy the army to suppress rebellion or enforce the rule of law in emergency situations. This is the main exception to the Posse Comitatus Law of 1878, another law that typically prohibits members of the military from performing domestic law enforcement duties, such as arresting civilians. Presidents have generally treated the Insurrection Act as a rarely used option, but some researchers worry that the law’s ambiguity opens the door to more use.
The law consists of three sections that outline different scenarios in which the president can deploy troops. The first is if the state governor requests these forces; Another is if the president decides that the courts are no longer working in the state to enforce federal law.
The third and broader condition allows the president to deploy the military in a state if the situation there causes some people to be deprived of their constitutional rights, and if state or local authorities are unable to enforce those rights. The president can do so even if the state governor objects.
Insurrection law differs from martial law, which generally means the imposition of military law on civilians. Forces deployed under the Insurrection Act still must adhere to regular US laws, and can only arrest people who violate those laws.
“It doesn’t give the president full power,” says Walter Olson, a senior fellow at the Cato Institute. “The Insurrection Act does not change what is legal and what is illegal.”
However, the law gives the president great flexibility. Unlike some other emergency laws, the Insurrection Act does not include a time limit or any requirement to consult Congress.
When was it used?
US presidents have used the Insurrection Act 30 timesranging from the country’s early days through the late 20th century, according to an analysis by the Brennan Center for Justice.
George Washington used an introduction to this law 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 beginning 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.
Its last use was in 1992, when the governor of California 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.
“Normally, when presidents invoke the Insurrection Act, it is fleeting” and ends quickly, Mr. Olson says.
How can it be used now?
In recent weeks, Mr. Trump has repeatedly hinted at triggering the Insurrection Act. During a meeting with military commanders on September 30, he suggested that the cities be used as “training grounds” for the army.
“We have the Insurrection Act for a reason,” Trump told reporters the following week, adding that he would enact it if people were killed and the courts, governors or mayors were “obstructing us.”
In an interview with Newsmax that same day, the president described the situation in Portland as “pure insurrection.” Ongoing protests outside the Immigration and Customs Enforcement field office in Portland have drawn crowds of up to a few hundred. Law enforcement officers fired pepper spray into the crowd, and protesters used pepper spray and threw rocks at customers and the building, according to court documents. Other parts of the city are largely peaceful.
More recently, Mr. Trump claimed that triggering the Insurrection Act would result in “no more lawsuits,” and spoke about the law during a debate in San Francisco, where he also called for the deployment of the National Guard before backing away from those plans.
“Don’t forget, I can use the Insurrection Act,” he told Fox News correspondent Maria Bartiromo during an October 19 interview. “This is an indisputable power.”
Mr. Trump told Ms. Bartiromo that he favored deploying the National Guard for now. Contrary to the provisions of the Insurrection Act, National Guard members cannot currently make arrests and can only support law enforcement officers.
Mr. Olson suggests that the president might hold back on invoking the Insurrection Act so he can retain him as a threat.
“Trump likes to make people think that fighting him is off limits because he always has something else up his sleeve,” he says.
What are the legal questions and implications?
Several states have challenged Trump’s deployment of the National Guard in court, with some temporary success. States may try to use the same tactic against the Insurrection Act, says Laura Dickinson, a professor at George Washington University Law School.
But “the challenge is that for the Insurrection Act, there is language in the law that suggests the president has relatively broad discretion,” she says — broader than the language in a section of Title 10 of the United States Code, which is the law Mr. Trump is currently citing to deploy the National Guard.
The section of the Insurrection Act that many experts say Mr. Trump is likely to invoke would allow him to deploy troops to a state if he “deems necessary” to suppress any “insurrection, domestic violence, unlawful combination, or conspiracy” that prevents the enforcement of laws or deprives people of their rights.
The law does not define terms such as “rebellion,” and Ms. Dickinson says this broad language leaves the president wide latitude to decide whether such circumstances occur and whether sending in the military is “necessary.”