There are few laws that President Trump checks more frequently than the Insurrection Act.
A 200-year-old constellation of laws, the law grants emergency powers to give active-duty soldiers civilian police duties that are otherwise prohibited by federal law.
Trump and his team have threatened to invoke it almost daily for weeks — most recently on Monday, after a reporter pressed the president about his growing efforts to send federalized troops into Democratic-led cities.
“Insurrection Act — yeah, I mean, I could do it,” Trump said. “Many presidents have done it.”
About a third of U.S. presidents have invoked these laws at some point — but history also shows that the law has only been used in moments of extraordinary crisis and political upheaval.
The Insurrection Act was Abraham Lincoln’s sword against secessionists and Dwight D. Eisenhower’s shield around the Little Rock Nine, the young black students who were the first to desegregate Arkansas schools.
Ulysses S. Grant invoked it more than half a dozen times to thwart coups, stem racial massacres, and quell the Ku Klux Klan in its birthplace in South Carolina.
But it has just as often been used to crush workers’ strikes and strangle protest movements. The last time it was invoked, Defense Secretary Pete Hegseth was in elementary school and most American soldiers were not yet born.
Today, many fear that Trump could use the law to suppress opposition to his agenda.
“Democrats were foolish not to change the insurrection law in 2021,” said Kevin Carroll, a former senior attorney at the Department of Homeland Security during Trump’s first term. “This gives the president almost unlimited power.”
It also excludes most judicial review.
“That can’t even be disputed,” Trump boasted Monday. “I don’t need to go yet, because I win the appeal.”
If this winning streak fades, as legal experts say could soon happen, some fear the Insurrection Act could be the administration’s next move.
“The insurrection statute is very broadly worded, but there is a history of even the executive branch interpreting it narrowly,” said John C. Dehn, an associate professor at Loyola University Chicago Law School.
The president first floated the idea of using the Insurrection Act against protesters in the summer of 2020. But members of his Cabinet and military advisers blocked the move, while pushing to use the National Guard to control immigration and the military to patrol the border.
“They have a real obsession with the use of the military domestically,” Carroll said. “It’s grim.”
During his second term, Trump instead relied on an obscure subsection of the U.S. code to send federalized troops to blue cities, saying it grants many of the same powers as the Insurrection Act.
Federal judges disagreed. Challenges to the deployments in Los Angeles, Portland, Oregon and Chicago have since clogged the appeals courts, with three cases on the West Coast before the 9th U.S. Circuit Court of Appeals and one pending before the 7th Circuit Court of Appeals, which has jurisdiction over Illinois.
The result is a growing number of disputes that experts say will return to the Supreme Court for resolution.
As of Wednesday, troops in Oregon and Illinois are activated but cannot be deployed. Oregon’s case is further complicated by the precedent of California, where federalized troopers have been patrolling the streets since June with the blessing of the 9th Circuit. That decision is expected to be heard again by the circuit on Oct. 22 and could be overturned.
Meanwhile, what California troops are legally allowed to do while federalized is also under review, meaning that even if Trump retains the power to call in troops, he may not be able to use them.
Scholars are divided on how the Supreme Court might rule on either issue.
“At this point, no court … has expressed sympathy for these arguments because they are so weak,” said Harold Hongju Koh, a professor at Yale Law School.
Koh cited the high court’s most conservative members, Clarence Thomas and Samuel A. Alito Jr., as unlikely to object to the president’s power to invoke the Insurrection Act, but said even some of the Trump appointees — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — might be skeptical, as well as Chief Justice John G.Roberts Jr.
“I don’t think Thomas and Alito are going to stand up to Trump, but I’m not sure Gorsuch, Kavanaugh, Barrett and Roberts can read this law to give him [those] powers.”
The Insurrection Act almost entirely avoids these fights.
That “would not only change the legal situation, but would fundamentally change the facts that we have on the ground, because what the military would be allowed to do would be much broader,” said Christopher Mirasola, an assistant professor at the University of Houston Law Center.
Congress created the Insurrection Act as a security measure in response to armed mobs attacking their neighbors and organized militias seeking to overthrow elected officials. But experts warn that the military is not trained to maintain law and order and that the country has a strong tradition of opposition to domestic deployments dating back to the War of Independence.
“Uniformed military leaders in general do not like to get involved in domestic law enforcement matters at all,” Carroll said. “The only similarity between the police and the army is that they wear uniforms and weapons. »
Today, the commander in chief can invoke the law in response to a call for help from heads of state, as George HW Bush did to quell Rodney King’s uprising in Los Angeles in 1992.
The law can also be used to circumvent elected officials who refuse to enforce the law or mobs who make it impossible — something Eisenhower and John F. Kennedy Jr. did to champion school integration.
Yet modern presidents have generally been reluctant to use the insurrection law, even in circumstances with strong legal justification. George W. Bush considered invoking the law after Hurricane Katrina created chaos in New Orleans, but ultimately declined, fearing it would intensify the already bitter power struggle between the state and federal government.
“There are a number of internal Justice Department opinions where attorneys general like Robert Kennedy or Nicholas Katzenbach have said, ‘We can’t invoke the Insurrection Act because the courts are open,'” Koh said.
Despite its extraordinary power, Koh and other experts said the law has guardrails that could make it harder for the president to invoke it in the face of naked cyclists or protesters in inflatable frog suits, which federal forces confronted recently in Portland.
“There are still legal requirements that need to be met,” said Dehn, the Loyola professor. “The problem the Trump administration would have by invoking [the law] is it very practical, they are capable of arresting people who break the law and prosecuting those who break the law.
This may be why Trump and his administration have not yet invoked this law.
“It reminds me of the time leading up to January 6,” Carroll said. “It’s a similar feeling that people have, the feeling that an illegal, immoral and reckless order is about to be given.”
He and others argue that invoking the Insurrection Act would move widespread concerns about military policing on American streets into existential territory.
“If there is a bad faith invocation of the Insurrection Act to send federal troops to strike anti-ICE protesters, there should be a general strike in the United States,” Carroll said. “It’s a real glass-breaking moment.”
At this point, the best defense might come from the military.
“If a truly reckless and immoral order is issued, the generals who have been in office for 17 years should say no,” Carroll said. “They must have the courage to put their stars on the table.”
