Executive Summary
The Story So Far
Why This Matters
Who Thinks What?
President Donald Trump has increasingly used the term “insurrection” to describe anti-ICE protests, particularly in Portland, and has indicated a willingness to potentially invoke the Insurrection Act. This federal law would allow him to deploy US troops to cities, even over the objections of local officials, to enforce federal authority and quell what he characterizes as “criminal insurrection.”
The Insurrection Act Explained
The Insurrection Act, first passed in 1792 and last amended in 1871, permits the deployment of US troops within the country under specific, limited circumstances. It functions in conjunction with the Posse Comitatus Act of 1878, which generally restricts the use of the military for domestic law enforcement.
President Trump stated that the act exists “for a reason” and indicated he would use it if “people were being killed, and courts were holding us up, or governors or mayors were holding us up.” His aide, Stephen Miller, also referred to a judge’s order barring National Guard deployment in Portland as “legal insurrection,” asserting an effort to “delegitimize the core function of the federal government.”
How the Act is Invoked
Typically, the Insurrection Act is invoked at the request of a state’s governor or legislature. A notable instance occurred in 1992 when President George H.W. Bush deployed federal troops to Los Angeles following riots, at the request of then-California Governor Pete Wilson.
However, President Trump suggested he could unilaterally invoke the act without local consent. The law states that a president may call federal service militia and use armed forces if they “considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.”
Historical Precedent for Unilateral Action
There is historical precedent for presidents invoking the Insurrection Act over the objections of state governors. Presidents Dwight Eisenhower and John F. Kennedy both utilized the act to enforce federal authority during the school integration era, overriding governors who resisted desegregation orders. Eisenhower, for example, deployed the 101st Airborne Division to Little Rock, Arkansas, after standing down the Arkansas National Guard.
The Brennan Center for Justice at New York University has documented 30 past invocations of the Insurrection Act, illustrating its historical application in various domestic crises.
President Trump’s increased rhetoric regarding “insurrection” and his contemplation of invoking the Insurrection Act underscore a potential shift towards greater federal intervention in domestic unrest, even in the face of local resistance from governors and mayors.
