Commentators usually benchmark the first 100 days as a time to assess the initial accomplishments of a new presidential administration. But it may be that ten days earlier, April 20, will mark a more important day on the calendar for the Trump administration.
On that date, the president will receive a report from the secretary of defense and the secretary of homeland security “about the conditions at the southern border of the United States and any recommendations regarding additional actions that may be necessary to obtain complete operational control of the southern border, including whether to invoke the Insurrection Act of 1807.” That act gives the president broad authority to use the military on American soil. As the Brennan Center explains, “The statute…is the primary exception to the Posse Comitatus Act, under which federal military forces are generally barred from participating in civilian law enforcement activities.”
The president can do so “when requested by a state's legislature, or governor, if the legislature cannot be convened, to address an insurrection against that state …to address an insurrection, in any state, which makes it impracticable to enforce the law, or to address an insurrection, domestic violence, unlawful combination or conspiracy, in any state, which results in the deprivation of constitutionally secured rights, and where the state is unable, fails, or refuses to protect, said rights.”
Given the breadth of the authority the Insurrection Act grants presidents, it is unsurprising that President Trump has long thought about using it. In 2022, then-former President Donald Trump stated, “The next President should use every power at his disposal to restore order — and, if necessary, that includes sending in the National Guard or the troops” to conduct law enforcement activities on U.S. soil.
In November 2023, he complained that during his first term, he was prevented, as the AP notes, “from using the military to quell violence in primarily Democratic cities and states.” Referring to the problem of violence in New York City and Chicago, President Trump said, “’The next time, I’m not waiting.’”
A year later, President Trump focused his thinking about the Insurrection Act on “the enemy from within.” As he put it, “We have some very bad people. We have some sick people, radical left lunatics. And I think they’re the big — and it should be very easily handled by, if necessary, by National Guard, or if really necessary, by the military, because they can’t let that happen.”
That’s why it was unsurprising that on January 20, the first day of his second term, he put the Insurrection Act on the table, this time as a tool to deal with the problem of illegal immigration. The plan seems already well worked out.
As Deputy Chief of Staff Stephen Miller has described it, “[I]n terms of personnel, you go to the red state governors and you say, give us your National Guard. We will deputize them as immigration enforcement officers….The Alabama National Guard is going to arrest illegal aliens in Alabama and the Virginia National Guard in Virginia.”
Make no mistake, the Insurrection Act grants the president broad authority. In 1827, the Supreme Court made that clear.
“The authority,” the Court said, “to decide whether the exigencies contemplated in the Constitution of the United States and the Act of Congress… in which the President has authority to call forth the militia, ‘to execute the laws of the union, suppress insurrections, and repel invasions’ have arisen is exclusively vested in the President, and his decision is conclusive upon all other persons.”
“The power itself, “ it continued, “is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances which may be vital to the existence of the Union. A prompt and unhesitating obedience to orders is indispensable to the complete attainment of the object.”
The president alone gets to decide what constitutes an “insurrection,” “rebellion,” or “domestic violence.” And once troops are deployed, it will not be easy to get them off the streets in any place that the president thinks is threatened by “radical left lunatics.”
That’s why April 20 will be so consequential.
If Americans take to the streets to protest the president’s invocation of the Insurrection Act, the president might use those protests as an excuse to extend the deployment of troops. The prospect of using the military against Americans is a nightmare and would mark a further descent into authoritarianism.
The people who wrote our Constitution knew that nightmare well. In 1768, regulars from the British Army were sent to an increasingly disorderly Massachusetts colony. Two years later, they opened fire on a group of colonists who were taunting them by throwing rocks and snowballs. That event was later dubbed the Boston Massacre.
As the Center for American Progress notes, “Article I, Section 8 and Article II, Section 2 (of the Constitution) split military authority between the president and Congress to prevent either branch from using the armed forces to carry out their policy agenda, as the British did in Boston….”
After the Constitution’s ratification, Congress passed the Insurrection Act to define the president’s power in emergencies. From its enactment to today, it has been used 30 times. President Ulysses Grant alone accounts for six of them. He called out the military to deal with outbreaks of violence during the post-Civil War Reconstruction period.
In the 20th century, Presidents Kennedy and Johnson each used it three times, most often to protect the civil rights of Black Americans against “rebellious” segregationists. The Insurrection Act was last used more than three decades ago, when President George HW Bush sent troops to Los Angeles to deal with riots in the wake of the Rodney King police beating.
In all his musings about the Insurrection Act, protecting civil rights has not seemed high on President Trump’s agenda. Instead, as his Executive Order put it, the object would be to “complete operational control of the southern border.”
But once invoked for that purpose, the act could be used to involve the military in rounding up illegal immigrants across the country.
As we contemplate what might happen on April 20, Americans who object to the invocation of the Insurrection Act will be in something of a bind. If they take to the streets to protest, that may give the administration a pretext to expand its use further.
The activist Daniel Hunter is right to observe that “Trump’s desire to criminalize protests against him is obvious… Trump would relish the opportunity to use the Insurrection Act more broadly against opponents.”
Another source of resistance could come from within the military itself. And finally, there are the courts.
Despite the breadth of its 1827 decision, in subsequent cases, the Supreme Court has pointed out that the nature of the power granted to chief executives in emergency situations “necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force…. Such measures, conceived in good faith, in the face of the emergency, and directly related to the quelling of the disorder or the prevention of its continuance, fall within the discretion of the executive…” Note the emphasis on “honest judgment” and “good faith.”
Americans can demand no less, even from President Trump. If they don’t get it, they should ask the courts to get it for them.
