Trump deadline on Insurrection Act looms
The Trump administration stands on the precipice of a monumental decision, with Defense Secretary Pete Hegseth and Homeland Security Secretary Kristi L. Noem due to make a recommendation soon on whether President Donald Trump should invoke the Insurrection Act to further crack down on immigration.
The assignment came in the form of a Jan. 20 executive order in which Trump declared a national emergency at the border and ordered the deployment of additional U.S. troops, surveillance capabilities and border barriers. Following that Day 1 edict, the president gave Hegseth and Noem 90 days to submit a “joint report to the President about the conditions at the southern border of the United States and any recommendations regarding additional actions that may be necessary to obtain complete operational control of the southern border, including whether to invoke the Insurrection Act of 1807.”
The law allows the president to use active-duty forces trained for combat overseas or federalized National Guard troops to suppress a “rebellion,” temporarily suspending the Posse Comitatus Act, which typically restricts the use of military involvement in domestic law enforcement. Its potential invocation now, with border security robust and encounters of migrants at historically low numbers, has already alarmed both constitutional law experts and those who study how the military and civilians interact with one another.
Thousands of active-duty troops have been dispatched to the southern U.S. border in the last few months, some with 20-ton Stryker combat vehicles. More recently, the administration also has approved a plan to have the Defense Department take control of a 60-foot strip of land that spans much of the southern border, effectively turning it into a satellite military installation and allowing troops to take a more active role in searching for illegal border crossers.
“We’ve already seen a willingness of the Trump administration to mischaracterize lawful actions as unlawful,” said Rosa Brooks, a Georgetown University law professor who studies civil-military relations. “If they were to use active-duty troops to suppress peaceful protests in American cities and towns, that would be truly unprecedented and truly quite shocking.”
Brooks said the potential invocation of the Insurrection Act also holds peril for the military, and many troops “would find it extremely troubling.” She noted the recent firing of Air Force Gen. Charles Q. Brown Jr., the former chairman of the Joint Chiefs of Staff, and several other senior military leaders, questioning whether it was an effort to proactively squash possible resistance to such an order.
His successor, Gen. Dan Caine, pressed on the issue during his confirmation hearing last month, said he would not do anything unconstitutional if so ordered by Trump, adding, “I don’t expect that to happen.”
Administration officials have been tight-lipped about their plans. The White House’s National Security Council referred questions to the Defense and Homeland Security departments. Sean Parnell, a spokesman for Hegseth, did not respond to questions, while DHS issued a statement that offered no hint of upcoming plans. Sunday marks the 90-day deadline mandated by Trump’s order.
“At the President’s direction, the DHS and DoD are developing a joint report assessing the conditions at the U.S. southern border and recommending actions to achieve full operational control of the border,” the statement said.
Trump’s interest in using the Insurrection Act to quell domestic unrest dates back to his first administration, when it caused a standoff with the Pentagon. After protests swept the country following the police murder of George Floyd, Trump said he wanted the military to respond, triggering a disagreement with senior defense officials about whether to invoke the Insurrection Act.
“The option to use active-duty forces in a law enforcement role should only be used as a matter of last resort, and only in the most urgent and dire of situations,” Defense Secretary Mark T. Esper told reporters in June 2020, after days of Trump pressing for military involvement. “We are not in one of those situations right now. I do not support invoking the Insurrection Act.”
Esper’s comments came shortly after a standoff in which he and the Pentagon’s top officer at the time, Gen. Mark A. Milley, appeared with Trump outside the White House shortly after federal authorities cleared nearby Lafayette Square of protesters. Milley, wearing combat fatigues, quickly peeled off from the group, but the image of him with Trump leaving the White House grounds triggered outcry and suggestions that it looked like military leaders supported the effort. Milley apologized for his appearance, angering Trump.
Esper’s resistance to using the Insurrection Act also incurred the president’s wrath, leading Trump to belittle Esper in public remarks and eventually fire him after the presidential election in November 2020.
Esper later recalled in a book he wrote, “A Sacred Oath,” that he moved soldiers from the 82nd Airborne Division in North Carolina to the outskirts of Washington, D.C., to meet the president’s demands while searching for National Guard troops who could respond instead. Thousands of National Guard forces eventually arrived, operating under the control of the Trump administration.
“At this point, even if we were wrong and violence spiked in the city, I didn’t want active-duty forces quickly available to the president,” Esper later recalled in his book. “We had managed to keep them out of the District so far. Guard forces were now flowing into D.C. in healthy numbers, so I decided to send all active-duty units home. I didn’t inform the White House about these decisions either. I couldn’t trust they wouldn’t reverse my decision.”
The Insurrection Act was last invoked in 1992 by President George H.W. Bush after California Gov. Pete Wilson (R) requested military aid to deal with riots spawned by the police beating of Rodney King in Los Angeles. By that time, dozens of people had been killed in urban violence, thousands had been arrested by police, and fires and looting had ravaged swaths of south central Los Angeles.
The circumstances are different now, said Elizabeth Goitein, senior director of the Liberty and National Security Program at New York University’s Brennan Center. Illegal border crossings, she noted, have plunged, with 7,180 encounters of migrants reported by Customs and Border Protection in March — down from 28,654 in February and a peak of 370,883 in December 2023 during the Biden administration.
Goitein said the Insurrection Act’s use for border security would be “an abuse” and “unprecedented.” The law, she said, “is intended to be used only in the most extreme crisis situations where civilian law enforcement is completely overwhelmed.”
Muzaffar Chishti, a senior fellow at the Migration Policy Institute, said that with the military already on the border and no signs of an invasion underway, “there doesn’t seem to be any practical need of dispatching the Army.”
The invocation of the Insurrection Act would mark the latest example of the Trump administration using arcane and extreme laws, including the Alien Enemies Act — last invoked during World War II to detain Japanese, German and Italian nationals — to pursue its domestic immigration agenda. Trump invoked the Alien Enemies Act last month to speed up deportations of alleged gang members, but his administration’s use of the law has faced legal challenges and led to a showdown with the federal judiciary. On Friday, the Supreme Court blocked the deportation of dozens of Venezuelans that the administration alleges are gang members.
Trump also has involved the military in deportation efforts, sending migrants to other countries on military aircraft earlier this year and also holding some at the naval base at Guantánamo Bay, Cuba.
“I think the argument is that just because a tool exists doesn’t mean you have to use it, especially when the objective reality for using it has diminished because the border is under control,” Chishti said.
Laura Dickinson, a law professor at George Washington University, said the Insurrection Act has been invoked about 30 times in history, mostly in cases when state officials request military assistance. The military, she said, is not trained for domestic law enforcement, meaning there are significant risks when they are assigned such a mission.
One possibility, she said, is that the administration could invoke the Insurrection Act but not immediately deploy troops. She cited a 1987 example in which President Ronald Reagan did so following a prison riot in Atlanta. In that case, a team of military advisers was sent to assist the FBI, but the prison was not stormed and the uprising there ended after 11 days.
“I think it could kind of be a radical act to invoke it on the border right now,” Dickinson said. “You’re not seeing larger riots. It’s just not the kind of situation where the Insurrection Act has been invoked in the past.”