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Today, our nation grapples with issues of power and abuse as old as the Constitution.
As President Trump turns his eyes from Los Angeles to Portland to Chicago, you may begin to hear the word “insurrection.” On Sunday, Trump said that “Portland is burning to the ground. It’s insurrectionists all over the place.”
That’s rich coming from someone who inspired the January 6 insurrection to stop the certification of the 2020 election.
Over the weekend, Judge Karin Immergut — a Trump appointee — blocked the deployment of the National Guard to “largely sedate” Portland. “This is a nation of constitutional law, not martial law,” she wrote. In reply, White House aide Stephen Miller accused her of staging a “legal insurrection.”
Not only is the term “insurrection” a wild exaggeration to describe the protests in Portland, but it’s also an obvious wink to the Insurrection Act. That law, last amended in the 1870s, gives presidents great power in an emergency.
Trump threatened to invoke it in 2020 but pulled back when Defense Secretary Mark Esper publicly opposed the move. The Insurrection Act is the ultimate exception to the Posse Comitatus Act, which bans presidents from deploying the military domestically for law enforcement. The Insurrection Act authorizes the deployment of troops only to suppress an insurrection, rebellion, domestic violence, or similar events that obstruct federal law or state civil rights law. The law has only been used 30 times in 230 years.
Yesterday, Trump made the threat even more explicit: “We have an Insurrection Act for a reason.”
As the weeks go by in this artificially generated constitutional crisis, the rationale for the domestic use of the military is shifting. Is it to protect federal law enforcement? To enforce immigration laws? To police crime? To stop nonexistent riots?
What’s becoming increasingly clear is that the purpose of using the troops is to use the troops. It’s blatant intimidation to stoke fear.
These issues are as old as the republic.
At the time of ratification, Americans feared abuse from a military under presidential command. In Federalist No. 46, James Madison sought to reassure: “Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger.” (Well, not actually very reassuring.)
Some states insisted on what became the Second Amendment, which sought to ensure that the federal government would not disarm any state’s “well regulated militia.”
The founders would be horrified to hear a president, standing in front of nearly 800 top generals, declare that domestic cities should be “training grounds” for a military that would now focus on “the enemy within.” Or, in a speech to 10,000 uniformed Navy personnel, say that “we have to take care of this little gnat on our shoulder called the Democrats.”
What can be the response?
Governors in California, Illinois, and Oregon have roared outrage.
The public needs to be ready to engage in peaceful protest.
Courts must step up. The Supreme Court has been reluctant to constrain the imperial presidency — but if it fails to act now, it could lose the trust of the rest of the federal judiciary and much of the country as well. And it could put our democracy at great risk.
Congress too must play its role and exert its power. Democrats and Republicans have long understood the need to reform the Insurrection Act. Sen. Richard Blumenthal (D-CT) has spearheaded legislation that would more narrowly define the criteria for deployment and bolster the role of Congress and the courts as a check against executive abuse. (His bill closely tracks the Brennan Center’s own recommendations.) Sen. Rand Paul (R-KY) has spoken eloquently on this topic, decrying domestic military deployments in which “they’re going out, they’re kicking in doors, they’re making arrests, they’re participating in roles that law enforcement — civilian law enforcement — would typically conduct.”
As my colleague Liza Goitein wrote last year, “The Insurrection Act is a dangerous tool in the hands of any president, and it should be reformed regardless of who occupies the White House in 2025.”
This coming year, we celebrate the 250th anniversary of American independence. At the time, Thomas Paine wrote, “In America, the law is king.” In this surreal season of presidential overreach, we will find out if that is still true.
