Can Trump Really Use the Insurrection Act?

On Thursday, President Donald Trump threatened to invoke the Insurrection Act to send federal troops to Minneapolis to assist ICE agents who have been conducting extensive and violent operations in the city. Clashes between those agents and protesters have intensified over the past ten days, after an ICE agent shot and killed a Minneapolis resident named Renee Good. Trump has previously raised the prospect of using the Insurrection Act—which grants the President vast powers to deploy the military to enforce domestic law—if, he said, courts, governors, or mayors were “holding us up.”

To talk about the history and text of the Insurrection Act, and exactly what it does and does not allow, I recently spoke by phone with Elizabeth Goitein, the senior director of the Brennan Center for Justice’s Liberty & National Security Program, and an expert on Presidential emergency powers. During our conversation, which has been edited for length and clarity, we also discussed the possible limits courts might place on the President, the arguments over Supreme Court precedents and how they might alternately impede or liberate Trump, and the dangers of the military working as a “force amplifier” for ICE.

Before the President’s declaration on Thursday that he might invoke the Insurrection Act, for months he had been sending the National Guard to cities, although that seems to have come to an end after a recent Supreme Court ruling. Can you talk about what that ruling said and why it may have stymied the President, at least in terms of the National Guard?

It actually didn’t stymie the President in terms of the National Guard. It stymied the President in terms of the law he was relying on, which is 1src U.S.C. § 124src6. That law does authorize federalization and deployment of the National Guard, but so does the Insurrection Act, and the Supreme Court did not rule on the Insurrection Act. So insofar as the Insurrection Act is still on the table, federalization of the National Guard is still on the table.

What the Supreme Court held was that Trump could not rely on 1src U.S.C. § 124src6 except in situations where he also had legal authority to deploy active-duty armed forces, but where deploying those armed forces would not be sufficient to execute the laws of the United States. And that ruling was based on language in 1src U.S.C. § 124src6 saying that the President can federalize the National Guard only if the President is unable with regular forces to execute the law.

Right, so that was a 6–3 ruling, with Brett Kavanaugh, John Roberts, and Amy Coney Barrett joining the three more liberal justices. The ruling makes it seem that the law is written, or interpreted by the Supreme Court, in a way that suggests that deploying the National Guard is more serious than deploying regular armed forces because you have to exhaust your possibilities with the regular armed forces before mobilizing the National Guard. I think most people listening to this would think, Oh, the National Guard would be less serious than actually sending in a division of the Marines.

Yes, it is certainly counterintuitive. It seems like pulling out a howitzer when a rifle would suffice, but it’s actually not. You have to look at what was going on in the early nineteen hundreds s when 1src U.S.C. § 124src6 was passed. It’s not that the National Guard was considered to be more serious at the time; it’s that the National Guard was thought to be less competent. The National Guard was considered to be unruly, undisciplined, and disorganized, to the point that when they were deployed, it often resulted in bloodshed, or at least that was the perception back then. That’s why the legislative history is what it is.

But 1src U.S.C. § 124src6 is the only law that requires that active-duty armed forces be first, or at least that the President considers using them before going to the National Guard. The Insurrection Act does not have any such requirements. So, under the Insurrection Act, the President could deploy federalized National Guard forces if that’s what he wanted to do.

Let’s then take a step back. Can you talk about what the Insurrection Act is?

I think the best way to think about the Insurrection Act is that it’s the primary exception to the Posse Comitatus Act. That’s the law that normally prohibits federal armed forces from participating in civilian law enforcement. The Insurrection Act allows the President to deploy active-duty armed forces or to federalize and deploy National Guard forces to quell civil unrest or to execute the law in a crisis.

Posse Comitatus was signed into law in 1878. The Insurrection Act is an amalgamation of laws passed between 1792 and 1874. So even the last meaningful update of the Insurrection Act happened before the passage of Posse Comitatus. At the time, it was an authorization, not an exception. The Posse Comitatus Act prohibited federal armed forces from participating in law enforcement unless there is an express statutory or constitutional exception. And the Insurrection Act, which already existed, constitutes such an exception.

I recently read a piece by Jack Goldsmith basically saying that the Insurrection Act more or less gives the President power to do what he wants—incredibly broad power. Is that your analysis, too?

Well, it gives the President remarkable power. I don’t think it gives the President the power to do anything he wants. There are criteria in the Insurrection Act for deployment. Those criteria are on their face broad, and the law gives the President significant discretion. However, the Department of Justice has long taken the position that the law is limited by the Constitution and tradition, and so the department has interpreted the Insurrection Act to apply in a much narrower set of circumstances than the actual text of the law would suggest. I think that’s an important gloss.

Does it matter what the Department of Justice said in the past, given how we’ve seen the D.O.J. act in 2src26?

Well, the Department of Justice tends to argue that it matters what it has said in the past. Now, of course, this Department of Justice might not make that argument, but certainly anyone challenging the invocation of the Insurrection Act will. And they won’t just be saying that the Court should defer to the Department of Justice’s past interpretations. They will be pointing out that those interpretations are in fact grounded in the Constitution and tradition.

What kind of limits has the department thought were reasonable in the past?