Sending the military to engage in domestic law enforcement operations is, to be clear, not something the White House just gets to do because Donald Trump hates Chicago. While America has long hoped to stop the scourge of deep dish pizza from infecting the nation’s strip malls, the Posse Comitatus Act of 1878 protects Pizzeria Uno from federal drone attacks.
That law dictates — as amended — “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.” Trump v. United States has, probably, rendered this law constitutionally unenforceable. Since the conservative justices proactively resolved the president of criminal liability for willfully using Navy SEALs to murder his political rivals, it’s hard to believe they’d stop the military from being deployed against average citizens.
Still, it would be interesting to see what the Space Force nerds think they could do.
But Trump v. United States aside, the executive branch isn’t entirely without legal recourse. The Insurrection Act of 1807 provides an exception to this restriction, allowing the president the power to call upon the military under defined, limited circumstances. It’s an incredibly rare and radical executive action that is not tripped by an inflatable frog costume twerking outside an ICE facility. Nonetheless, Donald Trump is leaking to anyone willing to reprint it that he’s very “close” to invoking the Insurrection Act.
The media has an obligation to the public to stress how abnormal and legally unjustified an Insurrection Act occupation of America’s cities would be. Unfortunately, we get this instead.
That’s Sarah Isgur, the former spokesperson for the Jeff Sessions DOJ, explaining that invoking the Insurrection Act is totally normal. Despite the thrust of the retweeting account, Isgur actually IS NOT saying that the Insurrection Act is cool. The MAGA fans clicking to see Stephanopoulos look “like a fool,” probably didn’t stick around for her conclusion that the Insurrection Act should have been amended years ago to set stricter standards. An interesting academic question maybe, but deeply misleading. Whether the Insurrection Act could stand a rewrite doesn’t change the fact that Donald Trump sending troops into Illinois or Oregon over the objections of their governors is illegal right now!
“Nearly half of U.S. presidents have invoked the Insurrection Act during their terms,” the Harvard Law-educated Isgur explains falsely. In total, 16 of the 45 presidents (remembering that Trump 47 and Cleveland 24 were performing encore acts) have invoked the Insurrection Act, coming in at around 35 percent, rendering “nearly half” an extreme act of adverbial violence upon the both math and the English language.
George Stephanopolous, interjects to add “not over the objection of governors.” Stephanopolous, who recently saw his network settle a defamation claim for $15 million after he said Trump was civilly liable for raping E. Jean Carroll as opposed to civilly liable for calling Carroll a liar when she said he raped her, clearly understands the value of being hypertechnically correct.
Isgur, however, pushes back “Absolutely! Think about Eisenhower at Little Rock.” And while Ike did act over the objections of the Arkansas governor, when she’s arguing that it’s totally normal to use the Insurrection Act this way, “remember they did it once 70 years ago,” is not the flex she thinks it is. For what it’s worth, Kennedy also slightly more recently called upon the Act over a state government’s objections. It has not happened since.
To put in perspective how long ago that was, when it last happened over a governor’s objection, people heard the name Kennedy and did not think “brainworm-addled lunatic.”
The Eisenhower comparison is also inapposite. The Insurrection Act authorizes three exceptions to the bar on deploying an occupying army within the United States. First, as Stephanopolous flags, a request from state government. Second, where people are deprived of constitutionally secured rights that the state fails or refuses to protect — the justification Ike and JFK operated under. And third, where it is “impracticable to enforce the law.”
Trump is, at best, aiming for the final justification by claiming that Portland is on fire, instead of a hipster enclave far too obsessed with Pinot Noir. But it’s still not sufficient to say, “protesting furries have made our ICE officers feel bad.” The text of the relevant statute contextualizes “impracticable to enforce the law” as an inability to operate “by the ordinary course of judicial proceedings.” There is no claim that Trump can’t enforce immigration laws and process the folks ICE rounds up through ordinary legal process. The fact that he’s losing cases doesn’t transform them from “the ordinary course of judicial proceedings.”
Oh, and if Trump were to invoke the Act anyway, the real culprit, she explains, is Joe Biden for not fixing this first. Deferring responsibility, for the win! Sure it’s been on the books as illegal since the 19th century, but this isn’t Trump’s fault for doing it, it’s on the Democrats who didn’t make it MORE CLEAR that it’s illegal!
There is no statutory justification for invoking the Insurrection Act right now. Full stop.
It’s not “a close question,” or “a debate,” or “a reason to revisit the language,” it’s just not legal under any serious reading of the text. When historians collect the receipts, they’re not going to distinguish the martial law cheerleaders from the folks staking out the “this may not be a good idea, but it’s legal” position. If anything, the latter is more dangerous because the fate of the Republic isn’t turning on the hardcore partisans, but will lean on the sort of people Isgur’s telling to shrug and blame Biden.
These “I’m personally not happy, but…” talking points might earn a social pardon at a DC cocktail party, but in the final equation, it’s still sanewashing the idea that the White House can legally deploy troops to occupy American cities.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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