President Donald Trump recently flirted with invoking the Insurrection Act again. This time, it was over the anti-ICE protests and some unrest in Minnesota. However, a different act of Congress could stand in his way.
“If the corrupt politicians of Minnesota don’t obey the law and stop the professional agitators and insurrectionists from attacking the Patriots of I.C.E., who are only trying to do their job, I will institute the INSURRECTION ACT, which many Presidents have done before me, and quickly put an end to the travesty that is taking place in that once great State,” Trump wrote on Truth Social Jan. 15.
He had previously floated the idea of calling in the military in response to anti-ICE protests in Los Angeles in June, saying at the time that the decision about troops in Southern California depended upon “whether or not there is an insurrection.” (It’s worth noting that Trump did not regard the Jan. 6, 2021, protests in Washington, D.C., as an insurrection and issued blanket pardons based upon this judgment.)
Talking ‘bout my insurrection
The Insurrection Act is an ancient piece of legislation, originally signed by President Thomas Jefferson in 1807. Its text allowed that in the event of an “insurrection in any State against its government,” and “upon the request of its legislature or of its governor,” the president may “call into Federal service such of the militia of the other States” to “suppress the insurrection.”
The legislation has been significantly amended twice, both times to make it easier for a president to act without the request of local governments.
There is some squabbling about how best to characterize the frequency of Insurrection Act invocations. It has been called into service some 30 times in American history, or an average of every 7.2 years in the 218 years that have gone by since it was signed into law. Some observers characterize that as “infrequent”; others say more with invocations, on average, shorter than two presidential terms.
Yet, it is undeniable that the frequency of the Insurrection Act’s use in recent decades has plummeted. The last time it was invoked by a president was when George H.W. Bush used it to put down the LA Riots in 1992.
No posse for you
The yang to the Insurrection Act’s yin is another venerable law called the Posse Comitatus Act. Sheriffs used to deputize a “posse” under trying circumstances to deal with serious threats to the public order. Congress in 1878 tried to make sure the military could not be used in that way.
The law currently holds that “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress,” anyone who “willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force … to execute the laws,” faces fines or imprisonment, or both.”
The Posse Comitatus Act is far from toothless in American courts today. A federal judge used it to force Trump to curtail the presence of the National Guard in Los Angeles in September.
Still, there are plenty of ways around the Posse Comitatus Act, one scholar from the Brennan Center for Justice at New York University points out.
Start with that “authorized by Congress” caveat, says Joseph Nunn, a lawyer for the Brennan Center, because there are a lot of those.
“Twenty-six distinct statutes expressly authorize the military to execute the law in one circumstance or another,” he wrote in a 2024 report. These exceptions include the right to use troops to protect timber in Florida and fertilizer on the guano islands.
More broadly, the White House “has long claimed that constitutional exceptions to the Posse Comitatus Act do exist,” and the courts have not always stood in the way of this interpretation.
Proposed reforms
Enforcement, even in the case of clear breaches, is tricky as well. Although the Posse Comitatus Act is a criminal statute with up to two years of jail time attached, “no one has ever been convicted of violating it,” Nunn laments, “despite evidence” that it has been violated.
The chance that troops themselves, acting on orders, will face charges is “essentially zero.” Commanders tend to escape censure as well, as they were also likely just following orders from the highest elected official in the nation, Nunn explains.
Among his list of recommendations for Congress to enact, Nunn argued that elected representatives should “ensure that the president cannot deploy the National Guard free from the Posse Comitatus Act’s constraints.”
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“Congress also should either extend the law’s coverage to include the District of Columbia National Guard, currently under the control of the president, or transfer control from the president to the mayor of Washington, DC, except when the Guard is federalized,” he suggested.
Elected representatives did not follow Nunn’s advice. In August, Washington, D.C., faced a partial federal takeover of the district’s law enforcement functions. Washington and state guards are now adding to a surge in federal law enforcement. Elsewhere, the National Guard has been used as the backbone for Trump’s efforts to remake America’s cities.
Jeremy Lott (@jeremylottdiary) is the author of several books, most recently The Three Feral Pigs and the Vegan Wolf.
