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President Donald Trump threatened to invoke the Insurrection Act on Thursday to quell protests against the federal occupation of the Twin Cities, a move that would allow him to send in the military over Minnesota’s opposition. Masked immigration officers are currently rampaging through Minneapolis and St. Paul, brutalizing protesters and arresting individuals on the basis of race, drawing widespread opposition from local leaders and communities. The president evidently believes that he can wield the Insurrection Act to suppress their First Amendment rights and impose a kind of military rule on the streets.
But what exactly is this law—and why hasn’t Trump deployed it already? To explain what the Insurrection Act truly authorizes and the risks that come with invoking it, Mark Joseph Stern spoke with Georgetown Law professor Steve Vladeck on this week’s episode of Amicus. Vladeck is an expert on military law and author of the One First Substack. A preview of their conversation, below, has been edited and condensed for clarity.
Mark Joseph Stern: Let’s start with the absolute basics: What is the Insurrection Act?
Steve Vladeck: The Insurrection Act is the common—if misleading—name that we’ve given to a series of statutes that trace all the way back to 1792. These statutes carry into force Congress’ constitutional power to provide for the “calling forth of the militia”—and then later, the military—to suppress insurrection, to repel invasion, or “execute the laws of the Union.” The idea was that Congress should be able to allow the president, in very narrow but important circumstances, to use military force as a backup when civilian order and civilian law enforcement has broken down.
So the idea was that it would be used in narrow circumstances, but the language is actually fairly broad. How have presidents invoked it in the past? It seems like, for the most part, they’ve actually been pretty restrained and not used it the way Trump wants to use it.
The history of the Insurrection Act is of pretty responsible usage of a statute that could be interpreted, in a vacuum, as a remarkably broad delegation of power to the president. We’ve had somewhere around 30 invocations of the statute across American history. But the last one was 34 years ago when President George H.W. Bush used it to help send troops in during the Rodney King riots in Los Angeles.
Although those 30 invocations might have been politically controversial in some cases, they weren’t legally controversial. When President Kennedy sent troops into Mississippi in 1962 to protect James Meredith and the 300 law enforcement officers who were there with him, that was politically controversial because the South didn’t want them. It was not legally controversial because those guys were at perilous risk of being lynched. And Mississippi’s local and state authorities were not exactly helping. So presidents have been responsible historically; they’ve usually had compelling factual bases for invoking the Insurrection Act. It hasn’t been used as a permanent way to deploy troops into our cities. Even the Justice Department, which is not shy about claiming power for the president, has taken a very narrow view of when they can use it.
It sounds like you don’t think that the protests in the Twin Cities right now actually give Trump legitimate grounds to invoke the Insurrection Act.
I don’t think it’s even close. But there is a problem of folks coming to this history fresh, who don’t know the backstory or the historical pedigree here. Because you could read the statute and say: If I squint a little, one protester throwing a rock at an ICE officer is impeding law enforcement. But the Insurrection Act is not about private conduct. It is really about circumstances where the states themselves are unwilling or unable to enforce their laws, or where they’re specifically thwarting federal law enforcement.
Every time the Trump administration points to an example of something bad happening to an ICE officer, the culprits are protesters, not state officials. President Trump can mouth off about the mayor and the governor, but he doesn’t have any specific examples of policies or episodes where state and local governments have been the reasons why ICE has been impeded. If it were otherwise—if one person doing one thing to impede an ICE officer from carrying out their duties was sufficient to justify an invocation of the Insurrection Act—then all protests would trigger the Insurrection Act. And that’s not how we’ve ever understood the Insurrection Act. It would not make any sense with First Amendment values.
Why hasn’t Trump invoked the Insurrection Act yet?
I think there are two reasons. One is political and one is legal. The political reason is that there really still are political obstacles to invoking the Insurrection Act. The president would invite blowback, even from some members of the Republican caucus and Congress. Not many, but given how razor-thin the Republicans’ margin is in the House right now, it wouldn’t take that many votes to really upend all of this.
Then the legal part is that the administration will be sued, and there are probably some folks who are wary that the facts, as they currently stand, make it at least somewhat questionable whether they will win that case. As opposed to a scenario where there’s a more visible unprovoked assault on an ICE officer, or a state official who is directly involved in impeding ICE. I think that might be the pretext they’re looking for.
That’s, of course, my next question: If Trump invokes the law, there will be a legal challenge, and it will go to the Supreme Court. What will that challenge look like, and do you really think it’ll have a chance of prevailing at SCOTUS? Is there also a chance that justices could say they just don’t have authority to overrule the commander-in-chief on this?
I don’t think the court will go quite that far. What I worry about more is a ruling that says that the president’s entitled to a whole lot of deference, not that the courts are powerless. I don’t think John Roberts is going to join an opinion that says the court is powerless about anything. But I do worry about the fight over the facts. In the National Guard cases, the lower courts made a series of factual findings that are inconsistent with what the executive branch said was the factual basis for deploying the troops. Do the courts have the power to do that? That will be the fight.
This is why I think the facts actually are going to matter. If and when the president invokes the Insurrection Act, will there be more of a factual basis than there is here on Friday morning? Does the district court make factual findings that are actually well-supported by the record and would be difficult for the Supreme Court to run away from? The devil’s going to be in the details.
It sounds like you think six of the justices really don’t want to call Donald Trump a liar. But to block the use of the Insurrection Act in the Twin Cities, the Supreme Court would probably have to say that Trump, executive branch officials, and law enforcement officers are not telling the truth. And the court is clearly hesitant to do that.
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I could also imagine a universe in which even the factual claims made by the Trump administration, taken at face value, could be held insufficient. The only way the Supreme Court could rule against Trump without second-guessing him is an opinion that says: Even assuming all this is true, that’s still not enough for the Insurrection Act. I have no faith that Justices Kavanaugh, Thomas, Alito, or Gorsuch would join such an opinion. So we’re back to where we are so often in these cases, which is: Where are the chief and Justice Barrett?
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Where do you think they are?
I don’t know. I’m heartened about what happened in the National Guard case, which is a sign that they do not just reflexively rule for the Trump administration. But it’s going to depend on just how divorced from reality the administration’s factual arguments are. This is why I think they’ve been waiting for something more than the Renee Good incident, for something more than a couple of suspects resisting an ICE arrest. I think they’re waiting for something that they can pitch plausibly as a completely unprovoked act of violence, or interference by a local or state law enforcement officer.
People often say that Trump does whatever he wants and doesn’t listen to his lawyers, but I don’t think that’s true when it comes to stuff that could reach the Supreme Court. I think he is very cautious when dealing with any issue that’s going to go to the justices.
One hundred percent. There’s a reason why they haven’t invoked the Insurrection Act as we’re sitting here today.
