The Case Against Deferring to Presidential Invocations of the Insurrection Act

Donald Trump has often threatened to invoke the Insurrection Act as a tool for using the military against his domestic opponents. Many observers believe this became more likely after the Supreme Court ruled against his efforts to federalize state National Guard units and use them for domestic law enforcement under a different statute.

The conventional wisdom on the Insurrection Act is that the president is entitled to broad judicial deference if he invokes it. In an important new article, Prof. Josh Braver (University of Wisconsin) argues that the conventional wisdom is wrong. Here is the abstract:

This article argues that courts do not owe substantial deference when the President seeks to deploy the military domestically under three of the Insurrection Act’s four trigger provisions. The exception is Section 252, which authorizes deployment “[w]henever the President considers” that has become “impracticable to enforce the laws . . . by the ordinary course of judicial proceedings.” This Article defends that claim through analysis of the Act’s text, statutory history, and legislative history.

The core argument turns on a single word of the Insurrection Act: “considers.” When, and only when, a trigger is keyed to what the President “considers,” courts owe deference. Two negative-implication arguments clarify and strengthen that inference. First, Congress used “considers” in Section 252’s judicial-proceedings trigger, but withheld comparable language from every other trigger, signaling that Section 252 is the sole grant of trigger deference. The statutory and legislative history confirm that this was no accident: Section 252’s “considers” traces to an 1861 amendment that added discretionary language to the judicial-proceedings trigger. This language was widely understood as necessary to resolve controversy over whether the President could deploy force against the seceding States at the civil war’s outset.

Second, where Congress uses “considers” elsewhere in the Act, it does so to confer deference over the choice and scale of forces (“means deference”), not over whether the trigger is satisfied. Using ‘considers’ for means while omitting it from triggers underscores that Sections 251 and 253 withhold trigger deference by design.

The withholding of trigger deference from Section 253 in particular has a structural logic: Section 253 is the only trigger provision that lacks any comparable ex ante check by another institution, making judicial scrutiny especially necessary ex post. And because Section 253(2) is the Act’s broadest and most abuse-prone trigger, that judicial check is especially crucial.

While Josh concludes that more deference is due under Section 252 than the other parts of the statute, even Section 252 deference has important limitations:

Two points should reassure. First, Section 252 presupposes an actual judicial proceeding: an injunction, a warrant, an order, or some comparable process to be enforced. And mere resistance is not enough; it must also be “impracticable to enforce the laws” through that process. The only exception is a genuinely collapsed judiciary—courts shuttered, process unavailable— an extraordinary condition that cannot be conjured by rhetoric alone.

Second, “substantial deference” is not abdication, especially given the trigger’s demanding terms. In 2025, two district judges confronting the Chicago and Portland National Guard deployments under a neighboring statute with analogous language applied a deferential framework yet still ruled against the Administration. The Ninth Circuit initially reversed in the Portland litigation on the ground that the district court’s analysis was not deferential enough; but it later granted rehearing en banc, and it might well have applied deference and still struck down the deployment. The Supreme Court intervened first, effectively mooting the dispute before the Ninth Circuit could rule.

In a recent Dispatch article (non-paywalled version here), I made a more general case that courts should not defer to executive invocations of emergency powers. Rather, the government should have to prove that the emergency that supposedly justifies their use actually exists. This is consistent with Josh’s argument that, under the Insurrection Act, there is no deference on “triggers” for the use of the act, though – if the “trigger” is present – there could be some deference with regard to the issue of whether the use of the military is a necessary response. See also Part V of my new article, “Immigration is Not Invasion,” which argues against deferring to executive claims that an invasion has occurred, thereby justifying the use of various sweeping emergency powers.

Josh Braver is also my coauthor on “The Constitutional Case Against Exclusionary Zoning,” Texas Law Review (2024). We have very different political ideologies and views on legal theory, but nonetheless agree on a great many things!