There is growing concern over the potential use of the military within the U.S. by President-elect Donald Trump, particularly for actions such as suppressing protests, patrolling the southern border, and conducting mass deportations. This could be made possible by invoking the Insurrection Act, a little-known law granting the president broad authority to deploy military forces on American soil.
Immediate steps must be taken to prevent this law from becoming a dangerous tool in Trump’s hands. The Posse Comitatus Act generally prohibits the military from engaging in domestic law enforcement, but the Insurrection Act provides an outstanding exception.
Attorney General William Barr and Gen. Mark Milley
This law has been used sparingly over the past 230 years, with only 30 instances of its invocation. It has historically been employed by presidents like Eisenhower, Kennedy, and Johnson to enforce desegregation and protect civil rights, overriding objections from state officials.
However, in today’s political climate, where the future president has expressed authoritarian ambitions, the Insurrection Act could allow Trump, or any future president, to undermine the principles of democracy and establish a militarized state.
In 2020, Trump sought to deploy military forces against Black Lives Matter protests but was dissuaded by advisers like Attorney General William Barr and General Mark Milley. With his second term in sight and a pledge to purge the government of independent voices, there may no longer be anyone to challenge such actions.
The Insurrection Act includes three conditions under which the president can deploy troops, with one being relatively uncontroversial — the request of a state to suppress an insurrection. However, the other two conditions could grant the president virtually unchecked power to act without state consent or even against state opposition.
The language of these two provisions is alarmingly vague. One section authorizes military deployment whenever “unlawful obstructions” make it “impractical” to enforce federal law, while another permits the use of force to suppress “domestic violence” or “unlawful combinations” obstructing federal law enforcement.
Even more concerning is the provision allowing the president to deputize “private militias,” potentially enabling extremist groups, such as those involved in the January 6th Capitol attack, to operate with federal authority.
Since the military is primarily trained for combat abroad, not domestic law enforcement, there are serious risks to constitutional rights and the coordination between federal, state, and local authorities would be a logistical nightmare. There is still hope, however.
The Biden administration and Congress have a narrow window of time to reform the Insurrection Act before Trump returns to office. Experts from across the political spectrum have proposed essential reforms, such as narrowing the circumstances under which the act can be invoked, removing provisions for private militias, or instituting checks like requiring congressional approval or judicial review.
Even without these reforms, the Justice Department’s Office of Legal Counsel (OLC) can clarify that the law’s broad language does not grant the unchecked authority it might seem to.
The possibility of Trump deploying military force against protests highlights the risks of the Insurrection Act’s broad language
The OLC has historically maintained that such expansive language must be interpreted narrowly, in line with constitutional provisions and historical precedent. In light of current threats to weaponize the act, the OLC should reaffirm these constitutional limits and guide judges interpreting the law’s scope.
OLC should stress that much of the law’s broad language was enacted post-Civil War under the 14th Amendment, which requires state action. Therefore, the Insurrection Act should only be invoked if state authorities are directly violating federal rights or unable to protect them.
Additionally, OLC should set a high bar for deploying military forces unless specific court orders are involved. According to the Supremacy Clause and Article IV, Section 4 of the Constitution, the president must show a genuine collapse of state and local authority, with the law reserved as a last resort.
Given this framework, Trump’s threats to deploy troops against protesters or undocumented immigrants are clearly unjustified, as they do not involve constitutional rights violations or failures in civil authority.
The framers of the Constitution were wary of standing armies and their use in civilian matters, understanding that turning military forces against citizens was a sign of tyranny. This understanding is embedded in the Constitution, which reserves domestic law enforcement to civilians, except in cases of invasion or rebellion.
The primary role of our military is to defend the nation from foreign threats, not to serve as a tool of domestic enforcement against the American people. As we face a president who has shown disdain for democratic norms, it is crucial to use every legal means available to prevent the abuse of such extraordinary power.
