As court battles intensify around President Donald Trump’s efforts to deploy National Guard troops in U.S. cities, he is considering another option that could allow him to significantly expand the military presence in the country.
Invoking the centuries-old Insurrection Act could give the president greater latitude to send troops into states over the objections of state and local officials, and allow those troops to play a more active role than National Guard troops currently allow.
Mr. Trump’s controversial threats to use the law – which is reserved for cases of insurrection or rebellion – come as his administration faces legal and political challenges in its efforts to involve the National Guard in a campaign against crime and illegal immigration.
Why we wrote this
President Donald Trump said he may invoke the Insurrection Act to support his efforts to deploy National Guard troops. The law, intended to quell rebellions, gives the president greater latitude but comes with restrictions, and its use could result in legal action.
The president and his team appear to view the Insurrection Act as a potential way to avoid lawsuits that slow his plans.
The administration’s deployment of National Guard troops to Los Angeles, Washington, D.C., and Memphis, and attempts to send troops to Chicago and Portland, Oregon, resulted in lawsuits in most of those cities and the states of California, Illinois, and Oregon. Several federal district and appellate courts have temporarily halted Mr. Trump’s plans or ruled against him, and the U.S. Supreme Court is considering whether to respond to an emergency appeal from the Trump administration asking it to authorize a deployment to Chicago.
Separately, on Friday, a federal judge in Oregon issued a permanent injunction preventing the president from deploying the National Guard to Portland. The Trump administration is also expected to appeal the decision.
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, authorizes the president to deploy the military to suppress a rebellion or enforce the rule of law in an emergency. This is the main exception to the Posse Comitatus Act of 1878, another law that normally prohibits the military from performing domestic law enforcement tasks, such as arresting civilians. Presidents have generally viewed the Insurrection Act as an option to be used rarely — but some scholars worry that the law’s ambiguity could open the door to broader use.
The law has three sections describing different scenarios in which the president can deploy troops. The first is if a state governor requests these troops; another solution is if the president determines that courts no longer function 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 in that country results in the deprivation of certain people of their constitutional rights and if state or local authorities are unable to enforce those rights. The president could do so even if a state’s governor objects.
Insurrection law is different from martial law, which generally involves imposing military law on civilians. Troops deployed under the Insurrection Act must always obey applicable U.S. laws and can only arrest people who violate those laws.
“It doesn’t give the president total power,” says Walter Olson, a senior fellow at the Cato Institute. “The Insurrection Act does not change what is legal and what is not.”
However, the law gives the president considerable flexibility. Unlike other emergency laws, the Insurrection Act has no time limit or requirement to consult with Congress.
When was it used?
American presidents used the Insurrection Act 30 times, from the country’s beginnings to the end of the 20th century, according to an analysis by the Brennan Center for Justice.
George Washington used a precursor to the law in 1792 to quell an uprising known as the Whiskey Rebellion, and Abraham Lincoln used it when the 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 while they attended classes in Little Rock, Arkansas.
The last use was in 1992, when the governor of California asked George HW Bush to send troops to quell widespread rioting in Los Angeles after four police officers were acquitted of beating Rodney King, an unarmed black man, during a traffic stop.
“Usually when presidents invoke the Insurrection Act, it’s a passing thing” that ends quickly, Mr. Olson says.
How could it be used now?
In recent weeks, Mr. Trump has repeatedly hinted that he might invoke the Insurrection Act. In a meeting with military leaders on September 30, he suggested that the towns could be used as “training grounds” for the military.
“We have an insurrection law for a reason,” Mr. Trump told reporters the following week, adding that he would pass it if people were killed and if courts, governors or mayors “held us back.”
In an interview with Newsmax the same day, the president called the situation in Portland “pure insurrection.” Ongoing protests outside the Immigration and Customs Enforcement Portland field office have drawn crowds of a few hundred people. Law enforcement fired pepper spray into the crowd, and protesters used pepper spray and threw rocks at officers and the building, according to court documents. Other areas of the city are largely peaceful.
More recently, Mr. Trump claimed that invoking the Insurrection Act would lead to “more lawsuits” and spoke about the law during discussions in San Francisco, where he also called for the deployment of the National Guard before walking back those plans.
“Remember, I can use the Insurrection Act,” he told Fox News reporter Maria Bartiromo in an Oct. 19 interview. “And it’s undisputed power.”
Mr. Trump told Ms. Bartiromo that he preferred to deploy the National Guard for now. Contrary to the provisions of the Insurrection Act, members of the National Guard cannot currently make arrests and can only support law enforcement.
Mr. Olson suggests the president might refrain from invoking the Insurrection Act so he can keep it as a threat.
“Trump likes this idea to weigh on people, and he likes to make them believe that fighting him is forbidden because he always has something else up his sleeve,” he says.
What are the legal issues and implications?
Several states have challenged Mr. Trump’s deployment of the National Guard in court, with some temporary success. States could try the same tactic against the Insurrection Act, said 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 said — 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 to a state if he “deems it 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 like “insurrection,” and Dickinson says this broad language gives the president wide latitude to decide whether those conditions are met and whether sending in the military is “necessary.”
