Will the Supreme Court allow Trump to use the Insurrection Act? | Opinion

On Thursday, Jan. 15, President Donald Trump posted a message on Truth Social: “If the corrupt politicians of Minnesota don’t obey the law and stop the professional agitators and insurrectionists from attacking the Patriots of ICE, 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.”

But the next day, Trump rolled backed his threat. “I don’t think there’s any reason right now to use it,” Trump told reporters at the White House on Jan. 16. “But if I needed it, I’d use it.”

Trump has threatened to invoke the Insurrection Act before, such as during public demonstrations following the murder of George Floyd in May 2020. It’s certainly possible he will try to use it in the future. So what is the Insurrection Act, and can Trump really use it?

The Insurrection Act

The Insurrection Act, simply put, is the only way a president can lawfully use the United States military for domestic law enforcement. The Posse Comitatus Act, adopted in 1878, prohibits the use of troops for policing within the United States. The act, however, allows presidents to do so where there is a statute authorizing it.

The only law that does this is the Insurrection Act of 1807. As amended, the Insurrection Act can be invoked in only three situations. One is at a state’s request, if a state’s governor or legislature requests federal assistance to suppress an insurrection or domestic violence that the state’s authorities are unable to control. The Insurrection Act was last used in 1992, when then California Gov. Pete Wilson asked President George H.W. Bush to send troops to Los Angeles to quell riots that developed after police officers were acquitted for the beating of Rodney King.

In the current situation, Minnesota Gov. Tim Walz is not requesting the military; he is asking that federal U.S. Immigration and Customs Enforcement (ICE) officers and border patrol agents leave the state because of the violence they are engendering.

Second, the Insurrection Act can be invoked to uphold federal authority where courts are incapable of enforcing the law. It can be used if “unlawful obstructions, combinations or assemblages, or rebellion against the authority of the United States” make it “impracticable” to enforce federal laws or court orders through normal judicial proceedings. There is no claim, though, that court orders through normal judicial proceedings won’t suffice.

Finally, the Insurrection Act can be used to protect the constitutional rights of a state’s inhabitants against an insurrection, domestic violence or conspiracy, and the situation obstructs federal law enforcement. This is likely what Trump would point to if he wants to use the Insurrection Act.

The last time the Insurrection Act was used without a governor’s request was in 1965, when President Lyndon Johnson invoked it to use the military to protect civil rights demonstrators in Selma, Alabama.

Requirements not met

This provision requires that the state be unable to protect the constitutional rights of its inhabitants. Yet, right now, there is no proof that state and local police in Minnesota cannot adequately safeguard the constitutional rights of those within the state.

In fact, a federal court in Minnesota has ordered that ICE and federal border patrol officers stop interfering with peaceful protestors. Therefore, the requirements for invoking the Insurrection Act have not been met.

If Trump tries to use the Insurrection Act in Minnesota, the governor and mayors of major cities are sure to sue and argue that he is acting illegally. They have already filed a lawsuit challenging the deployment of large numbers of ICE and border patrol agents in Minnesota, and their lawsuit could easily be expanded to challenge the use of the Insurrection Act.

The greatest obstacle to their lawsuit would be a Supreme Court decision from 1827, Martin v. Mott, which said that under the Insurrection Act “the authority to decide whether the exigency has arisen belongs exclusively to the president.” But if this is followed, the limits on the use of the military contained in the Posse Comitatus Act, which was adopted six decades later, would become meaningless. And the president could declare an exigency and use troops any time he wants.

In December, the Supreme Court, in Trump v. Illinois, prevented Trump from federalizing state national guards and stressed that the Posse Comitatus Act greatly limits the ability to use the military for domestic law enforcement. My hope is that the court would follow this approach if Trump invokes the Insurrection Act and not allow it unless one of the three circumstances enumerated in the law is clearly met.

There is a strong tradition of not using the military for policing in the United States. The image of soldiers roving the streets is something we see in countries with authoritarian governments, not this country. Police — and not soldiers — are trained to respect constitutional rights in policing and to use deadly force only if necessary.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law.