WASHINGTON — White House officials have been having increasingly serious discussions about President Donald Trump in recent days. citing the Insurrection Acta rarely used 19th-century law that gives the president the authority to station active-duty troops on U.S. soil for law enforcement purposes, five people familiar with the negotiations told NBC News.
The discussions come as Trump sought to deploy National Guard troops in several major cities, including Los Angeles, Chicago and Portland, Oregon, saying they were needed to reduce crime and protect Immigration and Customs Enforcement officers from protesters. Critics said the Trump administration was exaggerating problems in those cities.
A decision on whether to implement the law is not expected anytime soon, according to a senior administration official. If this happened, it would be a noticeable escalation. Currently, the guards serve a limited auxiliary function, as active-duty military personnel are prohibited from conducting civilian law enforcement activities such as conducting searches and arrests. But the Insurrection Act allows the president to station troops on US soil for this purpose.
Trump's plans to deploy the National Guard have at times encountered legal obstacles. A federal judge in Oregon on Sunday blocked the president from sending security detail to Portland from any state. The next day, Trump publicly stated that he would invoke the Insurrection Act “if necessary.”
“If people were being killed and we were being detained by courts or governors or mayors, of course I would do it,” Trump said. At the moment, he said, this is not necessary.
Conversations inside the White House about using the law have ebbed and flowed since Trump took office again in January, said five people, including a senior administration official, two people familiar with the discussions and two people close to the White House.
But recently, the debate within the administration has shifted from whether the law makes sense to apply it to a deeper examination of how and when it might be applied, both people close to the White House said.
Administration officials have developed legal protections and different uses for the law, two of the people said.
But the current broad consensus among the president's aides is to exhaust all other options before taking that step, said a senior administration official and one of the people close to the White House.
A person close to the White House described the process as moving up an “escalation ladder.”
Asked about discussions about invoking the Insurrection Act, White House spokeswoman Abigail Jackson said in a statement: “The Trump Administration is committed to restoring law and order to American cities that have been plagued by violence due to Democratic mismanagement. And President Trump will not stand by while violent rioters attack federal law enforcement officers. The Administration will work to protect federal assets and officers while making American cities safe again.”
the law gives the president wide discretion regarding its application. It can be invoked at the request of a state or when the president determines that conditions such as “unlawful obstruction,” “sedition,” or “insurrection” have made it difficult to enforce the law. During the civil rights era, three presidents—Dwight D. Eisenhower, John F. Kennedy and Lyndon B. Johnson—used the law to protect activists or enforce court orders demanding desegregation. It was last used at the request of the governor of California during the 1992 Los Angeles riots.
The governors of Oregon and Illinois oppose sending troops to their states. There are no riots, and the authorities are not ignoring court orders.
The White House expects any potential use of the law to be met with swift legal challenges and ultimately end up in the Supreme Court.
Last month federal judge rules that the White House deployment of active-duty troops to Los Angeles in June was illegal under the Posse Comitatus Act, a 19th-century law that prohibits the use of the military as police. Since the decision, administration officials have renewed discussions and internal legal review around the use of the Insurrection Act, according to two people familiar with the discussions and one person close to the White House.
But Trump was warned that it might not survive the Supreme Court under current circumstances, ending his winning streak there, these people said, and the idea was shelved for the time being.
A White House spokesman declined to discuss specific issues but said the president's legal team is focused on developing a legal path that can withstand judicial scrutiny.
“Ultimately, it is the president's vision and the president's policies that he was elected to implement that lawyers are simply working hard to defend,” a White House official said. “We're working hard to look at the law and say, 'How do we implement the president's vision?'”
Trump considered using the law in his first term during protests following the 2020 killing of George Floyd. He refused despite urging from some allies and later regretted the decision, according to a senior administration official. He views his current decision through that lens, a senior administration official said.
One of Trump's deputy chiefs of staff, Stephen Miller, has been a leading and longtime proponent of invoking the Insurrection Act. Miller has been at the center of discussions on the issue since Trump took office, five sources and another person familiar with the discussions said.
Administration officials have discussed the possibility of using the law if local law enforcement agencies cannot or will not protect ICE and federal law enforcement agents, one of the people familiar with the discussions said.
But one concern some officials have expressed is that enforcement of the law could end up pitting active-duty U.S. troops against other Americans, the person said.
Trump has increasingly used the word “insurrection” to describe events in Portland and Chicago in recent days. He said Monday that opposing ICE agents' attempts to conduct immigration enforcement operations in both cities constitutes a “criminal insurrection.”
Trump and Miller described protesters against ICE operations in Chicago and Portland as engaging in organized violence against the federal government.
“They're saying they're going to stage an insurrection against the federal government by using disruptive force to stop ICE officers from going out and making arrests,” Miller told reporters Monday. “This is an all-out campaign of insurrection against the sovereignty of the United States because the Democratic Party and those who commit violence in this country do not believe in the legitimacy of the sovereign territory of the United States.”
