The Insurrection Act

A short guide to President Trump's options.

With resistance to ICE in many blue cities, there’s been a lot of talk about Trump invoking the Insurrection Act. There are other, lesser statutes that he can employ, but this is the big gun. It intentionally gives the President enormous freedom and power to put down resistance to the law.

This is the relevant part of the Insurrection Act:

§252. Use of militia and armed forces to enforce Federal authority

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

So first, it’s discretionary to employ: “Whenever the President considers.” This language leaves no room for judicial review, by design; it’s up to the President to determine when the predicates for invoking the Act apply. Second, this phrase, “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings,” seems to fit perfectly with what’s going on in places like Portland or Chicago.

Third, discretionary language again: “as he considers necessary to enforce those laws or to suppress the rebellion.”

It’s entirely up to the President under the statute. You may think it’s a bad idea -- I’m not so sure it is, because I don’t think it’s a good idea for state and local governments to have a veto on federal law enforcement actions -- but it’s entirely lawful. And, properly understood, not subject to judicial review. (The Insurrection Act, once triggered, also overrides the Posse Comitatus Act’s prohibition on using the military for law enforcement purposes.)

Invoking the Insurrection Act wouldn’t be unprecedented — it’s been done thirty times in the history of the Republic, or a bit less than once every 8 years. A state actively resisting federal authority could be met with the full power of the U.S. military — and the President could even recognize a competing, alternative state government. There’s no meaningful opportunity for judicial review under the Insurrection Act as its invocation is a “political question” and hence non-justiciable. (The same is true, as the Supreme Court held almost 200 years ago, in the case of Luther v. Borden, of recognizing one of two competing state governments as the legitimate government of a state).

“Political question” just means that the decision is left to one or both of the political branches of the government, leaving no room for judicial resolution. There is discipline, just not judicial discipline; instead it comes ultimately from voters.

And invocation of the Insurrection Act carries a special political resonance, though how much of one depends on how it is used. Using it to send troops to Portland to control a mob isn’t likely to be too controversial. Using it to replace the government of California, or to support a breakaway state of “New California,” would be more so.

Unless pushed, I don’t think Trump will go very far with this. Politically, it suits him to have Democrats, who yammered about “insurrection” for the past several years, acting loudly insurrectionary. And he seems to be able to accomplish a lot with threats — a threat to send the National Guard in to Chicago produced a sudden flurry of action from the Illinois State Police.

As Clay Whitehead used to say, the value of the Sword of Damocles is that it hangs, not that it falls. That may be the case here, too. But if the sword of the Insurrection Act falls, it can fall very heavy indeed.