How legal battles intensified Given President Donald Trump's efforts to deploy National Guard troops to U.S. cities, he is mulling another option that could allow him to significantly expand his military presence domestically.
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 are currently allowed.
Trump's controversial threats to invoke the law – which is intended only for cases of insurrection or insurrection – 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 did we write this
President Donald Trump says he may use the Insurrection Act to help his efforts to deploy National Guard troops. The law, designed to quell the insurrection, gives the president greater discretion, but has restrictions and its use could result in legal challenges.
The president and his team appear to view the Insurrection Act as a potential way to circumvent the court cases that are slowing down his plans.
The administration's deployment of National Guard troops in Los Angeles, Washington, D.C., and Memphis, as well as attempts to send troops to Chicago and Portland, Oregon, have led to lawsuits from most of those cities, as well as the states of California, Illinois, and Oregon. Several federal district and appeals courts have temporarily halted Trump's plans or ruled against him, and the U.S. Supreme Court I'm weighing whether to answer to the Trump administration's emergency request to allow deployment to Chicago.
Additionally, a federal judge in Oregon issued a ruling Friday. permanent injunction prevent 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 might use it.
What is the Insurrection Act?
Insurrection ActThe law, passed in 1807, allows the president to use the military to suppress insurrection or enforce the rule of law in emergency situations. This is a major exception to the Posse Comitatus Act of 1878, another law that generally prohibits military personnel from performing domestic law enforcement tasks such as arresting civilians. Presidents typically view the Insurrection Act as an option that will be rarely used, but some scholars worry that the law's ambiguity opens the door to wider use.
The law consists of three sections that describe different scenarios under which the president might send in troops. First, if the state governor requests these troops; another option is if the president decides that state courts are no longer functioning to enforce federal law.
The third and broadest provision allows the president to send military forces to a state if the situation there results in some people being deprived of their constitutional rights and if state or local authorities fail to enforce those rights. The president can do this even if the state governor objects.
The Insurrection Act is different from martial law, which usually means the imposition of martial law on civilians. Troops deployed under the Insurrection Act must still obey normal U.S. laws and can only arrest those 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 not.”
However, the law gives the president significant flexibility. Unlike some other emergency laws, the Insurrection Act does not have time limits or any requirement to consult with Congress.
When was it used?
US Presidents Used the Insurrection Act 30 timesFrom the nation's earliest days to the late 20th century, according to an analysis by the Brennan Center for Justice.
George Washington used the predecessor of the 1792 law. to suppress a rebellion 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 schoolchildren from racial violence while they attended classes in Little Rock, Arkansas.
The last time this happened was in 1992, when the governor of California asked George H. W. Bush to send troops to quell riots 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 fleeting thing” that ends quickly, Mr. Olson said.
How can this be used now?
Trump has repeatedly hinted at invoking the Insurrection Act in recent weeks. During a meeting with military leaders on September 30, he proposed using the cities as “training grounds” for the military.
“We have the Insurrection Act for a reason,” Mr. Trump told reporters the following week, adding that he would pass it if people were getting killed and the courts, governors or mayors were “detaining us.”
In an interview with Newsmax that same day, the president called the situation in Portland “pure insurrection.” Ongoing protests outside The Portland Immigration and Customs Enforcement field office drew crowds of several hundred people. Law enforcement officers sprayed pepper spray into the crowd and protesters used pepper spray and threw rocks at agents and the building, according to court documents. The rest of the city is mostly peaceful.
More recently, Mr. Trump said invoking the Insurrection Act would result in “no more lawsuits” and spoke about the law while discussing San Francisco, where he also called for the deployment of the National Guard before abandoning those plans.
“Don't forget, I can use the Insurrection Act,” he told Fox News reporter Maria Bartiromo during an Oct. 19 interview. “And that is an undeniable strength.”
Mr. Trump told Ms. Bartiromo that his preference for now was to use the National Guard. Contrary to 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 refrain from invoking the Insurrection Act to maintain it as a threat.
“Trump likes to have this idea hanging over people, and he likes to make them think that fighting him is off limits, because he always has something else up his sleeve,” he says.
What are the legal issues and consequences?
Several states have challenged Trump's deployment of the National Guard in court, with some temporary success. States could try the same tactics against the Insurrection Act, said Laura Dickinson, a professor at George Washington University Law School.
But “the problem is that the Insurrection Act has language in the statute that suggests the president has relatively broad powers,” she says—broader than the language of Title 10 of the U.S. Code, the law Mr. Trump is currently citing for the deployment of the National Guard.
The section of the Insurrection Act that many experts say Trump is likely to invoke would allow him to send troops into a state if he “deems necessary” to suppress any “insurrection, domestic violence, unlawful association or conspiracy” that obstructs the enforcement of laws or deprives people of their rights.
The law does not define terms such as “insurrection,” and Ms. Dickinson says the broad language leaves broad latitude for the president to decide whether those conditions apply and whether a military deployment is “necessary.”
