Could Trump Invoke the Insurrection Act? What to Know—and How to Prepare
Don't Panic - Gather Information - Act Together
Here's what Ezra Levin said in a recent newsletter to Indivisibles.
What is the Insurrection Act?
The Insurrection Act is a dusty law that has gone without updates for 200 years. The original text states: “That in all cases of insurrection, or obstruction to the laws… the president of the United States [can] call forth the militia [or armed forces] for the purpose of suppressing such insurrection.” (Technically, it is now not just one law but a series of statutes in Title 10 of the U.S. code.)
Notably, the Posse Comitatus Act — which blocks the military from being involved in civilian law enforcement — is suspended under the Insurrection Act. The role of the military is to “assist” civilian authorities, but not replace them (so this is not technically martial law).
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.
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.
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.
Trump is a typical bully. He breaks norms and laws to see what he can get away with. If the opposition is weak, he steamrolls forward. If the opposition is strong, he slinks away and claims he was never interested in doing what he'd committed to do anyway.
It’s up to us. I’m sorry. I wish there was some neat trick to fix this. I wish there were some institution -- businesses, media, law firms, universities, anything -- that would save us. I wish congressional Republicans weren’t feckless cowards or collaborators or both. Hell, I wish I could finally watch the White Lotus season finale instead of reading up on the history of an obscure 1807 law. But here we all are.
As with so much in this era, it falls to the people to protect the republic.
Organized people -- like the 3 million people who showed up in boisterous, defiant, peaceful protests in every single state and multiple countries barely more than a week ago for Hands Off! That you’re reading this email tells me you’re interested in being an active part of this movement. That’s great news, because it’s going to take all of us. So read on for this week’s action items, feel free to hit me up on Bluesky, and please join for this week’s What’s the Plan call with me and Leah. Just please no White Lotus spoilers -- someday I’ll get to watching that.
-- Ezra Levin
Co-Executive Director, Indivisible
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