President Donald Trump on Thursday threatened to invoke an 1807 law and deploy troops to quell persistent protests against the federal officers sent to Minneapolis to enforce his administration’s massive immigration crackdown.
The threat comes a day after a man was shot and wounded by an immigration officer who had been attacked with a shovel and broom handle. That shooting further heightened the fear and anger that has radiated across the city since an Immigration and Customs Enforcement agent fatally shot Renee Good in the head.
“If the corrupt politicians of Minnesota don’t obey the law and stop the professional agitators and insurrectionists from attacking the Patriots of I.C.E., who are only trying to do their job, I will institute the INSURRECTION ACT, which many Presidents have done before me, and quickly put an end to the travesty that is taking place in that once great State,” Trump said in social media post.
Minnesota Attorney General Keith Ellison responded to Trump’s post by saying he would challenge such an action in court. He’s already suing to try to stop the surge by the Department of Homeland Security, which says it has made more than 2,000 arrests in the state since early December. ICE is a DHS agency.
Trump has repeatedly threatened to invoke the Insurrection Act, a rarely used federal law, to deploy the U.S. military or federalize the National Guard for domestic law enforcement, over the objections of state governors. Most recent mentions also include in Chicago, Los Angeles and even in Minnesota following the murder of George Floyd.
“Donald Trump and Kristi Noem are using armed, militarized agents to provoke Minnesotans,” Illinois Gov. J.B. Pritzker wrote on X Thursday. “The Insurrection Act should not be used as an excuse to send armed troops into our streets.”
So what is the Insurrection Act and can it be used?
What is the Insurrection Act?
“While the military is generally barred from being deployed for domestic law enforcement without congressional authorization, the Insurrection Act gives the president power to deploy the U.S. military domestically and to federalize National Guard troops during specific circumstances,” NBC News reported.
President Thomas Jefferson signed the Insurrection Act into law in March 1807.
While members of the military can’t perform the same actions as local police, including things like searches or making arrests, the Insurrection Act allows the president to deploy troops to take those steps.
What happens if Trump invokes the Insurrection Act?
If Trump invokes the Insurrection Act of 1807, most legal barriers to military use would disappear; the president claiming a rebellion is underway means soldiers could then assume regular police duties, including arresting people.
Such a declaration would allow the president to send in units from any service branch, including the Marines, and to employ the Air Force, regular Army or put together a federal militia, according to Syracuse Law School professor emeritus William Banks.
“They could start enforcing curfews. They could tell people to stay in their homes. They could close doors,” Banks said. “It’s not martial law, but it’s one step toward martial law.”
Northwestern University Law School professor and constitutional expert Paul Gowder told NBC 5 Investigates in October the use of the Insurrection Act despite stern objections by state leaders is concerning.
“I think that it would set up a really stark conflict between the president’s use of troops and our traditional understanding of the autonomy of state governments in local law enforcement that I think would be challenging,” Gowder said.
Presidents have great latitude to use it without oversight, unchecked by congressional review – but possibly checked by the judicial system.
Legal experts say the courts can review after deployment if there are allegations a president “acted in bad faith.”
Has it ever been used?
Presidents have indeed invoked the law more than two dozen times, most recently in 1992 by President George H.W. Bush to end unrest in Los Angeles after the Rodney King verdict. In that instance, local authorities had asked for the assistance.
And NBC Chicago has found that the Insurrection Act has been previously imposed on Chicago.
In 1894 – during the infamous Pullman Co. labor strike that had paralyzed the nation’s rail system. Then-President Grover Cleveland sent in 2000 U.S. Army troops to break the union and stop deadly riots. There was fierce opposition to federal soldiers from then-Chicago Mayor John Hopkins and then-Illinois Gov. John Altgeld.
“We don’t talk about it very much in history classes for whatever reason,” said Northwestern Law’s Gowder. “But this extensive pattern is called the Labor Wars sometimes by historians because it turned into something that looked a lot like warfare.”
The use of the Insurrection Act and deployment of federal troops in Chicago more than 130 years ago is one of just a few dozen times in American history that it’s been used – most often to control unchecked uprisings and raging citywide riots.
What is required to use the Insurrection Act?
The president can take action if asked to do so by a governor or a Legislature, but that’s not the only way.
“Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion,” the statute reads.
Another section says the president, “by using the militia or the armed forces, or both,” shall “take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy” if it “hinders the execution of the laws of that State, and of the United States within the State,” or if it “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.”
The statutes essentially allow the president to determine what constitutes an insurrection or rebellion – and when such measures are no longer needed.
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