Supreme Court’s National Guard decision could force new debate over how Trump could use Insurrection Act
The Supreme Court’s decision Tuesday blocking President Donald Trump from sending the National Guard into American cities is likely to raise a politically fraught debate about the president’s willingness to invoke a 19th-century law to deploy the regular military on American soil instead.
Throughout his campaign and in the early months of his second term, Trump and his aides repeatedly teased the idea of invoking the Insurrection Act to deploy the military for domestic purposes — a move that, while perhaps politically unpopular, would give him broad discretion to skirt the general prohibition on using the military domestically.
In its order Tuesday, the Supreme Court focused on another federal law Trump tried to use to federalize hundreds of members of the Illinois National Guard. That law allows a president to call up the guard if he is unable to execute the nation’s laws with the “regular forces.” Over dissent from three conservative justices, the Supreme Court ruled that Trump had not met that law’s requirements.
But the decision on the court’s emergency docket did not deal directly with other authorities Trump could attempt to use.
“As I read it, the court’s opinion does not address the president’s authority under the Insurrection Act,” Justice Brett Kavanaugh, a conservative who sided with the majority, wrote in a footnote. “One apparent ramification of the court’s opinion is that it could cause the president to use the US military more than the National Guard to protect federal personnel and property in the United States.”
That is a possibility that has lurked in the case at the Supreme Court for months as the administration has attempted to send National Guard troops into Democratic-run cities to help protect Immigration and Customs Enforcement agents and facilities.
Trump has repeatedly flirted with invoking the Insurrection Act, which would give him broad authority to evade the restrictions on using the military domestically imposed by the 1878 Posse Comitatus Act.
“I’d do it if it’s necessary. So far it hasn’t been necessary,” Trump told reporters in the Oval Office in October. “But we have an Insurrection Act for a reason.”
The White House did not immediately respond to a request for comment. In a statement after the court’s order Tuesday, White House spokeswoman Abigail Jackson said that nothing in the Supreme Court’s decision detracts from the administration’s “core agenda” of ensuring that “rioters did not destroy federal buildings and property.”
The current version of the Insurrection Act was last invoked by President George H.W. Bush during the 1992 Los Angeles riots that followed the acquittal of four White police officers in the beating of Rodney King. Perhaps the best-known use of the Insurrection Act was in 1957, when President Dwight Eisenhower federalized the Arkansas National Guard and sent the 101st Airborne Division to Little Rock to integrate its schools.
That order followed the Supreme Court’s historic decision three years earlier in Brown v. Board of Education that declared segregated schools unconstitutional.
William Banks, a Syracuse University law professor and expert on the Insurrection Act, told CNN that such a move would almost certainly be more politically dicey. “Instead of part-time National Guard personnel, the president could send in the 82nd Airborne in heavy armor and gear and gin up some heavy martial images for our screens,” Banks said.
The administration appeared to acknowledge that concern in briefing earlier this fall, telling the Supreme Court that it made sense to rely on the National Guard in Chicago because its members are “civilians temporarily called up to serve with deep experience in deescalating domestic disturbances among their fellow citizens.” That, the administration suggested, might be preferable to relying on the standing army, “whose primary function is to win wars by deploying lethal force” against enemies overseas.
But now that the Supreme Court has ruled against Trump on his first approach, there is the question of whether the administration will continue to pursue some other legal authority with which to justify a military presence in US cities.
“There’s only a little bit of daylight between no law and the Posse Comitatus prohibition and the Insurrection Act,” Banks said. “There’s no other space for them to work.”
Elizabeth Goitein, senior director of the Brennan Center’s Liberty and National Security Program, predicted the administration will “run into similar trouble” if it attempted to invoke the Insurrection Act.
That’s partly because of how the Justice Department has for months framed its need to rely on the law at issue in the case before the Supreme Court, known as section 12406(3).
“Trump can’t use 12406(3) to deploy the National Guard at this time,” Goitein said. “I think there are also potential ramifications for whether or how he could use the Insurrection Act.”
The court’s decision, which landed months after the Trump administration filed its emergency appeal, came as tensions on the ground at an ICE facility west of Chicago appeared to ease. The administration told a federal court in a different case weeks ago that “increased coordination” with local police had “reduced the need for federal officers” to engage with protesters at the building in suburban Broadview.
And defense officials announced in November that they were “rightsizing” planned deployments to Chicago, Los Angeles and Portland, Oregon. The officials said at that time that only about 300 National Guard units from Illinois would remain ready to deploy. Lower court orders have blocked their ability to conduct operations with the Department of Homeland Security.
Though the situation on the ground in Chicago quieted, the administration argued in court papers in November that the deployments were still needed.
Justice Neil Gorsuch, a conservative who dissented from the court’s decision on Tuesday, wrote in a separate opinion that he was “not comfortable venturing an answer” to many of the questions raised by the case, including how or whether the law Trump initially relied on interacts with the Insurrection Act.
“If all those questions were not fraught enough, an even graver one lurks here too: When, if ever, may the federal government deploy the professional military for domestic law enforcement purposes consistent with the Constitution?” Gorsuch wrote.
Those are questions, he said, he would prefer to leave “for another case where they are properly preserved and can receive the full airing they so clearly deserve.”
