Trump, Migrants and the Insurrection Act

 What is the Insurrection Act?

The Insurrection Act authorizes the president to deploy military forces inside the United States to suppress rebellion or domestic violence or to enforce the law in certain situations. The statute implements Congress’s authority under the Constitution to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” It is the primary exception to the Posse Comitatus Act, under which federal military forces are generally barred from participating in civilian law enforcement activities.

 

The Insurrection Act, in principle, only allows the American president to use the armed forces to assist civilian authorities to enforce some law in the presence of an insurrection. But the language of the law is quite vague. Trump makes it clear that he has in mind invoking the Insurrection Act to very broad purposes, essentially to change the regime.

 

1. What does it do? Invoking the Insurrection Act would allow Trump to deploy the military (including federalized National Guard) anywhere in the US. Trump may claim it’s to protect the border, but he could deploy these forces anywhere.
2. Why April 20? On his first day in office, Trump directed the Department of Homeland Security to take 90 days to come up with a recommendation on whether he should invoke the Insurrection Act to solve the non-existent immigration crisis. 90 days after January 20 is April 20. It could come earlier, or it could never come.
3. How bad could it get? We don’t know! Maybe Trump doesn’t invoke it at all -- he didn’t in his first term. Or maybe he does, and he further militarizes the border. Or maybe he uses it to implement his promised nationwide deportation force and crack down on peaceful protest. Last week, his ICE Director described their vision of creating a deportation system “like [Amazon] Prime, but with human beings.” Maybe that’s mere bluster, or maybe that’s the plan. Nobody knows -- which means we should neither freak out prematurely nor ignore the warning signs.

So what do we do about it? The courts are unlikely to save us here -- the Insurrection Act gives fairly wide authorities to the President and the courts have historically been fairly deferential regarding those powers. This is more of a political question than a legal question: Does Trump look strong and decisive, and does his support grow by virtue of invoking the Act? As he militarizes the border and beyond, do his approval numbers increase? Does his coalition hold strong? Or is there widespread backlash, defiance, opposition, and ridicule? In the latter case, Trump may call it off and claim that was his plan all along.