Trump’s Insurrection Act Authority: Can He Really Deploy Troops?
on Thursday, President Donald Trump threatened to invoke the Insurrection Act to send federal troops to Minneapolis to assist ICE agents who have been conducting extensive and violent operations in the city. Clashes between those agents and protesters have intensified over the past ten days, after an ICE agent shot and killed a Minneapolis resident named Renee Good.Trump has previously raised the prospect of using the Insurrection Act-which grants the President vast powers to deploy the military to enforce domestic law-if, he said, courts, governors, or mayors were “holding us up.”
To talk about the history and text of the Insurrection Act, and exactly what it does and does not allow, I recently spoke by phone with Elizabeth goitein, the senior director of the Brennan Center for justice’s Liberty & National Security Program, and an expert on Presidential emergency powers. During our conversation,which has been edited for length and clarity,we also discussed the possible limits courts might place on the President,the arguments over Supreme Court precedents and how they might alternately impede or liberate trump,and the dangers of the military working as a “force amplifier” for ICE.
Before the President’s declaration on Thursday that he might invoke the Insurrection act,for months he had been sending the National Guard to cities,even though that seems to have come to an end after a recent Supreme Court ruling. Can you talk about what that ruling said and why it may have stymied the President,at least in terms of the national Guard?
It actually didn’t stymie the President in terms of the National Guard. It stymied the President in terms of the law he was relying on, which is 10 U.S.C. § 12406. That law does authorize federalization and deployment of the National Guard, but so does the Insurrection Act, and the Supreme Court did not rule on the Insurrection Act. So insofar as the Insurrection Act is still on the table, federalization of the national Guard is still on the table.
What the Supreme Court held was that Trump could not rely on 10 U.S.C. § 12406 except in situations were he also had legal authority to deploy active-duty armed forces, but where deploying those armed forces would not be sufficient to execute the laws of the United States. And that ruling was based on language in 10 U.S.C.§ 12406 saying that the President can federalize the National guard only if the President is unable with regular forces to execute the law.
Right,so that was a 6-3 ruling,with Brett Kavanaugh,John Roberts,and Amy Coney Barrett joining the three more liberal justices. The ruling makes it seem that the law is writen, or interpreted by the Supreme Court, in a way that suggests that deploying the National Guard is more serious than deploying regular armed forces as you have to exhaust your possibilities with the regular armed forces before mobilizing the National Guard. I think most people listening to this would think,Oh,the National Guard would be less serious than actually sending in a division of the Marines.
Yes, it is certainly counterintuitive. It seems like pulling out a howitzer