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The former president has yet again threatened to use the Insurrection Act, a statute that permits the president to send military forces on domestic territory. This move is regarded as a approach to manage the activation of the National Guard as the judiciary and state leaders in Democratic-led cities keep hindering his initiatives.

But can he do that, and what are the consequences? This is what to know about this centuries-old law.

Understanding the Insurrection Act

The statute is a US federal law that grants the president the ability to utilize the armed forces or nationalize state guard forces within the United States to quell internal rebellions.

This legislation is commonly referred to as the 1807 Insurrection Act, the year when President Jefferson enacted it. However, the modern-day Insurrection Act is a combination of regulations passed between the late 18th and 19th centuries that outline the duties of the armed forces in civilian policing.

Typically, federal military forces are prohibited from carrying out civilian law enforcement duties against the public unless during times of emergency.

The law permits military personnel to participate in domestic law enforcement activities such as detaining suspects and conducting searches, roles they are typically restricted from engaging in.

A professor commented that national guard troops cannot legally engage in routine policing unless the commander-in-chief activates the law, which permits the deployment of military forces inside the US in the event of an civil disturbance.

This step raises the risk that troops could employ lethal means while filling that “protection” role. Moreover, it could be a forerunner to further, more intense force deployments in the coming days.

“No action these troops are permitted to undertake that, such as other officers targeted by these demonstrations could not do independently,” the expert said.

Past Deployments of the Insurrection Act

The statute has been used on dozens of occasions. It and related laws were utilized during the civil rights movement in the sixties to protect protesters and learners desegregating schools. The president deployed the 101st Airborne Division to Arkansas to guard African American students integrating Central High after the state governor mobilized the National Guard to prevent their attendance.

Since the civil rights movement, yet, its use has become highly infrequent, as per a report by the Congressional Research Service.

George HW Bush deployed the statute to tackle violence in LA in 1992 after four white police officers filmed beating the African American driver King were cleared, resulting in deadly riots. The governor had sought armed assistance from the president to quell the violence.

Trump’s History with the Insurrection Act

Trump threatened to deploy the act in June when California governor challenged Trump to prevent the use of troops to assist immigration authorities in Los Angeles, labeling it an improper application.

In 2020, Trump asked governors of various states to mobilize their National Guard units to Washington DC to control demonstrations that arose after Floyd was fatally injured by a Minneapolis police officer. Many of the executives consented, deploying units to the DC.

At the time, he also suggested to invoke the act for demonstrations subsequent to the killing but never actually did so.

While campaigning for his second term, Trump implied that would change. The former president informed an audience in Iowa in 2023 that he had been hindered from using the military to suppress violence in urban areas during his initial term, and stated that if the situation arose again in his future term, “I will act immediately.”

The former president has also committed to deploy the state guard to help carry out his immigration enforcement goals.

The former president remarked on this week that to date it had been unnecessary to invoke the law but that he would evaluate the option.

“The nation has an Act of Insurrection for a reason,” the former president stated. “If fatalities occurred and legal obstacles arose, or executives were holding us up, certainly, I would act.”

Why is the Insurrection Act so controversial?

There is a long American tradition of preserving the national troops out of civilian affairs.

The nation’s founders, following experiences with overreach by the British forces during colonial times, were concerned that providing the chief executive absolute power over military forces would undermine civil liberties and the democratic process. Under the constitution, executives typically have the right to ensure stability within state territories.

These values are embodied in the Posse Comitatus Act, an 19th-century law that generally barred the military from engaging in police duties. This act acts as a legislative outlier to the Posse Comitatus Act.

Advocacy groups have repeatedly advised that the act provides the commander-in-chief broad authority to employ armed forces as a domestic police force in ways the founding fathers did not anticipate.

Judicial Review of the Insurrection Act

The judiciary have been reluctant to challenge a commander-in-chief’s decisions, and the ninth US circuit court of appeals recently said that the executive’s choice to send in the military is entitled to a “great level of deference”.

But