Trump mulls rare use of Insurrection Act over Los Angeles protests

President Donald Trump has publicly contemplated invoking a law that would allow him to use the military for almost unlimited domestic law enforcement nationwide in response to at-times violent protests in Los Angeles over immigration crackdowns.

Experts said use of the more than two-centuries-old Insurrection Act in this circumstance would have no direct comparison in the country’s history, and Democrats and experts said is not needed to respond to what is happening on the streets of L.A.

During an Oval Office event Tuesday, Trump told reporters that there were several times Monday he could have invoked the Insurrection Act over unrest in Los Angeles.

“If there’s an insurrection, I would certainly invoke it. We’ll see,” Trump said, before going on to say that there were “terrible” moments on Monday night in the city.

Trump’s comments came after a series of escalating conflicts over the weekend, where protests erupted in the city after enforcement raids by Immigration and Customs Enforcement officers.

The Insurrection Act is a law first passed in 1807 that gives the president broad authority to use military force to counter any “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States,” either at the request of a state or at his own discretion.

The law includes no explicit provisions for judicial review, timeframes, or mechanism for congressional review.

Trump has already federalized the California National Guard, over the objections of California officials, and announced that 700 active-duty Marines would be added to the force moving into Los Angeles.

Mark Nevitt, a law professor at Emory University who served as a tactical jet aviator and attorney in the Navy, said that Trump’s invoked authority allows the Marines to operate in support roles and National Guard personnel to protect federal property and officials with “really murky” limits.

However, Nevitt said using Marines and National Guard for domestic law enforcement is generally prohibited by an 1878 law called the Posse Comitatus Act. That law that prohibits the use of military force for domestic law enforcement, except in cases “expressly authorized by the Constitution or Act of Congress.”

Nevitt said that if Trump decides to invoke the Insurrection Act, it would give him “much, much broader authority” for using the military in domestic law enforcement by bypassing the Posse Comitatus Act. Nevitt said that Trump has already pushed the bounds of the law with how he federalized the California National Guard.

“That is sort of untested, the president seems to be relying on that there is a rebellion there,” Nevitt said. “That is probably not the case under the law.”

Troops conducting law enforcement operations would still have to abide by federal law and the Constitution, Nevitt said, including protections such as requiring warrants for searches.

Retired Army Lt. Gen. Russel Honoré, who coordinated military relief efforts in post-hurricane New Orleans as commander of Joint Task Force Katrina, said the president has existing authority to call up members of a state National Guard without the consent of the state governor.

Trump deployed National Guard troops under Title 10 of the U.S. Code, which allows the president to place them under federal command under certain circumstances, including a threat of rebellion. The order does not limit the deployment’s potential location to California.

“On face value it may not be illegal, but it is not normal for a president to go around a governor to mobilize a National Guard and deploy them inside the state when the local police say they do not need help,” Honoré said.

But an invocation of the Insurrection Act would be “a major disruption to the confidence people have in our democracy,” Honoré said.

Elizabeth Goitein, senior director for Liberty & National Security at the Brennan Center for Justice, said that Trump’s invocation of the National Guard could reverberate well beyond Los Angeles, and provides a rationale for deployments anywhere people protest ICE enforcement.

“That is completely unheard of, there is no precedent for effectively a nationwide preemptive deployment for effectively policing protests,” Goitein said.

Goitein said that the president’s use of National Guard is already coming close to the amount of authority he would have under the Insurrection Act, and “unless a court tells him he can’t then we are in a very dangerous place.”

Tradition ‘abhors’

A 2018 Congressional Research Service report found that the American tradition “abhors” the use of military personnel for domestic law enforcement outside certain circumstances. However, the report found instances of military use for domestic law enforcement from soon after the founding, including President George Washington’s campaign against the Pennsylvania Whiskey Rebellion.

Presidents have invoked the Insurrection Act multiple times over the years, including in 1957 to help integrate the Little Rock, Ark., school system and in 1968 in response to riots following the assassination of Martin Luther King Jr.

President George H.W. Bush last invoked the Insurrection Act in response to the riots in Los Angeles over the 1992 acquittal of police officers who had attacked Rodney King. However that came at the request of California officials, who felt the riots had grown out of control.

California officials have insisted that the isolated violence at the current protests, with cars burning on cable TV, has not reached that point. And they have pushed back on claims of insurrection, arguing that the National Guard deployments have only intensified any conflict.

In a lawsuit seeking to invalidate Trump’s federalization of the California guard, Attorney General Rob Bonta said that police have the resources to deal with the protests, which have involved a few thousand people in a city of millions.

“At no point in the past three days has there been a rebellion or an insurrection. Nor have these protests risen to the level of protests or riots that Los Angeles and other major cities have seen at points in the past, including in recent years,” Monday’s lawsuit said.

Honoré said one of the preconditions to invoking the Insurrection Act is if “the local governments have lost civil control, they do not have the capacity to administer civil government.”

“We are far from that in the current situation in Los Angeles,” Honoré said.

Rep. Jimmy Gomez, D-Calif., told reporters Tuesday that it was Trump’s deployment of California National Guard troops to the city that has escalated the conflicts.

“We are at a dangerous inflection point in our country, in a democracy, civil disobedience isn’t met with military force, but that’s exactly what Trump is doing. He’s inciting a situation that would get worse if people do not bring down the tension. And the way you can bring down the tension is by withdrawing the National Guard and the U.S. military,” Gomez said.

Speaker Mike Johnson, R-La., told reporters Tuesday he was “not going to engage in hypotheticals” over whether Trump may invoke the Insurrection Act.

He also said that Trump is “fully within his authority” to deploy National Guard troops and Marines to Los Angeles.

“The No. 1 job of government is to protect the citizenry from foreign threats and domestic threats,” Johnson said.

Johnson said he would like to see California Gov. Gavin Newsom “tarred and feathered” over his opposition to Trump’s policies and that Newsom was “a participant and an accomplice” in efforts to frustrate ICE enforcement.

Sen. John Kennedy, R-La., said he was not concerned about a possible invocation of the Insurrection Act in response to the protests in Los Angeles. Kennedy said he also was not concerned about the potential deployment of National Guard troops to his home state, as would be allowed under Trump’s proclamation.

“We have a wolf problem in L.A., Gavin Newsom and Mayor (Karen) Bass are sheep,” Kennedy said.

Trump has for years publicly mulled using military force for domestic law enforcement. In a June 2020 speech in the Rose Garden, Trump said that if cities did not rein in protests in response to George Floyd’s murder he would send troops to “quickly solve the problem for them.”

During his 2024 campaign, Trump called New York and Chicago “crime dens” and said he may order the deployment of U.S. military forces to enforce the law.

Training and changes

Honoré also pointed out that most members of the military are not prepared to deal with large, rowdy crowds of civilians. “The military is trained to close with and destroy the enemy, kill and capture,” Honoré said.

Honoré said that when he served, members of the military would receive as little as four hours of training on dealing with crowds and other civil disturbances. Also, few units had enough equipment, such as armor and shields, to deal with crowd control, Honoré said.

Most would have to wait while equipment was shuffled around the country.

“The biggest disappointment, I’ll repeat, is that the legislative branch is not doing what I think they need to do to make sure these directives the president are giving are consistent with the Constitution and amendments,” Honoré said.

Nevitt said there is a “potential for mishap” for members of the military confronting a crowd when they’ve spent most of their careers preparing for a warzone.

“Here we are not in Iraq, we are in Los Angeles, and it is a totally different rule set,” Nevitt said.

Multiple think tanks and other experts have called on Congress to address the Insurrection Act, including the Brennan Center and the American Law Institute.

Last year, the American Law Institute published a proposal from a bipartisan group of legal experts and former federal officials, including several officials from Trump’s first and second administrations. That includes John Eisenberg, who the Senate confirmed as Trump’s new assistant attorney general last week.

“The Insurrection Act in its current form provides broad authority without sufficient checks and balances,” the group wrote. “It is an old statute with vague triggers for the indefinite domestic use of military force.”

The group argued to change the law to provide new limits on when a president can invoke the law, create time limits on its use, and require congressional reauthorization.

The law was mentioned briefly in the recommendations from the House select panel investigating the Jan. 6, 2021, attack on the Capitol. The panel’s final report said it was “troubled” by evidence of discussions about invoking the law, but did not make any recommendations beyond saying Congress should “further evaluate all such evidence, and consider risks posed for future elections.”

Sen. Richard Blumenthal, D-Conn., introduced a bill in 2020 that included changes to the Insurrection Act, but the measure did not advance, and no other legislation addressing the Insurrection Act has advanced in either chamber of Congress.

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