President Donald Trump has been itching to use the Insurrection Act since the George Floyd protests in 2020. But he’s closer than ever to invoking the 1807 law.
In the past week, Trump and Vice President JD Vance and deputy chief of staff Stephen Miller have threatened that the president could use the Insurrection Act to deploy the military domestically.
The law gives the president fairly broad discretion to determine whether there is an insurrection or rebellion taking place, which could allow Trump to circumvent legal questions he’s facing over sending the National Guard into Los Angeles, Chicago and Portland, Oregon.
“I think that the president is closer to invoking the Insurrection Act than he’s been since 2020, 2021,” said Kevin Carroll, a former military intelligence officer who served in the Homeland Security Department during Trump’s first term. “If he gets a final judicial order saying that he can’t use troops under the statutory authorities he’s exercised thus far, he’ll do it under the Insurrection Act.”
After returning from a trip to Israel and Egypt, Trump again suggested he may invoke the law, saying he doesn’t have “to go there yet.”
“I could use it, if I wanted to,” Trump said on Air Force One late Monday. “I’m allowed to use the insurrection Act.”
The rarely used law was last invoked by President George H.W. Bush in 1992 during the Los Angeles riots that followed the acquittal of police officers in the beating of Rodney King.
The White House did not respond to questions about the possibility of Trump invoking the Insurrection Act or on the restraining orders now blocking troop deployment to Portland and Chicago.
Two Republican governors — Kevin Stitt of Oklahoma and Phil Scott of Vermont — have publicly expressed reservations about Trump’s attempts to deploy National Guard troops across state borders, as have two former Republican governors, John Kasich of Ohio and Christine Todd Whitman of New Jersey.
But that small GOP anxiety is unlikely to register with Trump, who is “closer than ever” to taking the step, said Miles Taylor, who also served during the first Trump administration.
“If anything’s giving him pause behind the scenes, it’s that his number one fear of all of his fears as a flesh-and-bone human being is the fear of looking like a loser,” said Taylor. “He doesn’t want to invoke the act and then lose in the highest court.”
Depending on how two federal appeals courts ultimately rule on challenges to Trump’s deployment of National Guard troops to Illinois and Oregon over the objections of home-state governors, the administration may appeal to the Supreme Court.
Last week, Trump floated invoking the Insurrection Act at least two times over as many days, saying “we have an Insurrection Act for a reason” and “if people were being killed, and courts were holding us up, or governors or mayors were holding us up, sure I’d do that.”
Miller, architect of Trump’s immigration crackdown across cities, posted on X that the Oregon judge’s ruling amounted to a “legal insurrection” and that there “is an organized terrorist attack on the federal government and its officers.”
He followed up, telling reporters at the White House that the president has “many other options” at his disposal to deploy troops.
Invoking the Insurrection Act could put the president “on stronger legal footing” said Joseph Nunn, a lawyer for the Brennan Center focused on the domestic use of the military. But he added “that it’s not a slam dunk.” There will be lawsuits challenging it, and the Insurrection Act doesn’t let troops do whatever they want. “It doesn’t change the fact that Americans have constitutional rights, and it would not let them go into Chicago and take over local policing,” said Nunn. Still, as another round of No Kings protests approaches this week, Republicans — from the president on down — are now referring to protesters as “insurrectionists” and “terrorists.” House Republican Whip Tom Emmer, of Minnesota, called the Americans planning to join No Kings demonstrations “the terrorist wing” of the Democratic Party. And some Republicans have started referring to the upcoming No Kings protests against Trump as “hate America” rallies. Sen. Jeff Merkley, D-Ore., told MSNBC that because the 1807 statute is “far more flexible,” Trump “will pursue using the Insurrection Act just to lay out the legal framework and have the military become accustomed to the fact that they respond to orders to deploy.” As Trump has increased the presence of federal immigration agents on the streets of Portland, Merkley warned Oregonians not to take the bait and engage in any violence that would give the administration justification to expand its presence. Instead, he recommended that protesters take inspiration from recent protests that included women handing out pastries in pajamas and activists staging a wedding ceremony outside of the city’s ICE facility. Merkley repeated that warning ahead of mass protests expected this weekend. “The president’s goal will be to produce violence and then use violence to expand his authoritarian powers,” he said. “Don’t help him do that.” Subscribe to the Project 47 newsletter to receive weekly updates on and expert insight into the key issues and figures defining Trump’s second term.
Laura Barrón-López covers the White House for MS NOW. Recommended
