Trump Won’t Invoke the Insurrection Act—As Long As He Can Use the National Guard However He Wants

On Thursday, a federal judge temporarily blocked President Donald Trump’s deployment of National Guard troops in the Chicago area, saying there was “no credible evidence” that conditions there met the terms of the statute on which he was relying. That decision came less than a week after another federal judge issued a temporary restraining order against a similar deployment in Portland, Oregon. Meanwhile, at a hearing on Thursday in the latter case, a panel of the U.S. Court of Appeals for the 9th Circuit seemed inclined to allow the Portland deployment.

In both cases, Trump is responding to protests against his immigration crackdown, claiming he needs the National Guard to protect federal facilities and personnel. The law he is invoking, 10 USC 12406, says the president “may call into Federal service members and units of the National Guard of any State” in response to a foreign invasion, an actual or incipient “rebellion” against the federal government, or conditions in which he is “unable” to enforce federal law “with the regular forces.” Trump says both of the latter two situations exist in Portland and Chicago.

The question raised by the National Guard cases is how much deference the courts should give those judgments. But if the courts get in Trump’s way, he can always resort to the alarmingly broad Insurrection Act, which gives him more discretion to deploy the military for law enforcement purposes.

Trump says the courts have no role at all in reviewing his determinations under Section 12406, a position that would leave him free to deploy the National Guard wherever and whenever he likes, regardless of the constraints imposed by Congress. In an earlier case involving Trump’s deployment of National Guard troops in Los Angeles, the 9th Circuit rejected the argument that his use of Section 12406 is “completely insulated from judicial review.”

While the president should receive “a great level of deference” under that statute, the 9th Circuit said, courts “may at least review the President’s determination to ensure that it reflects a colorable assessment of the facts and law within a ‘range of honest judgment.'” It concluded that the Los Angeles deployment probably met that test, overruling a contrary decision by U.S. District Judge Charles Breyer.

Applying the same test last Saturday, U.S. District Judge Karin Immergut concluded that Trump’s assessment of the situation in Portland was “simply untethered to the facts.” From June 11 through June 25, she acknowledged, the protests at Portland’s Immigration and Customs Enforcement (ICE) building “included violent behavior and required an increased law enforcement presence.” But since then, she noted, the protests had dwindled to 20 or fewer people and were “generally peaceful,” with “only sporadic incidents of violence and disruptive behavior.”

By late September, when Trump decided the National Guard was necessary to “protect War ravaged Portland” from “domestic terrorists,” the situation was “categorically different from the violent incidents” that the government had described in Los Angeles, Immergut said. She noted that the government cited “only four incidents of protesters clashing with federal officers” in September, including the erection of a “makeshift guillotine,” flashlights shone into the eyes of drivers at the ICE facility, and an online photograph of an “unmarked ICE vehicle.”

While “these incidents are inexcusable,” Immergut said, they are “nowhere near the type of incidents that cannot be handled by regular law enforcement forces.” She added that neither “violence in a different state” nor “the mere potential for future escalation” can “provide a colorable basis” for invoking Section 12406. That argument, she said, would “render meaningless” the statute’s “extraordinary requirements,” allowing the president to “federalize one state’s National Guard based on events in a different state or mere speculation about future events.”

During Thursday’s 9th Circuit hearing, Judge Ryan Nelson—like Immergut, a Trump appointee—was notably skeptical of her reasoning. Nelson suggested that requiring ongoing violence would inappropriately constrain the president’s authority. Applying that test to the Civil War, he said, “I’m not even sure President [Abraham] Lincoln would’ve been able to bring in forces when he did.” Unless Lincoln acted “immediately after” the Confederate attack on Fort Sumter, Nelson told Oregon Assistant Attorney General Stacy Chaffin, “your argument would be, ‘Oh, things are OK right now.'”

Judge Bridget Bade, another Trump appointee, also challenged the idea that the relevant events do not include what happened three months before the National Guard deployment in Portland. She noted that the ICE facility “was forced to close” for “almost a month,” from June 13 to July 7, and “only reopened” with the help of 115 Federal Protective Service (FPS) officers reassigned from elsewhere. “Why is all of that irrelevant to the president’s decision to federalize the National Guard?” she asked Chaffin.

Immergut thought the deployment of FPS personnel from other states was not enough to show that the president was unable to enforce the law “with the regular forces.” That “proposed test,” she said, “would allow the President to call in the National Guard whenever one law enforcement office receives support from another office, which is a routine aspect of law enforcement activity. If the President could equate diversion of federal resources with his inability to execute federal law, then the President could send military troops virtually anywhere at any time.”

Nelson seemed untroubled by that implication. When the president says he had to rely on FPS officers who “aren’t normally in Portland,” which “is straining our ability to execute the laws,” he said, “I don’t understand how you can question” that determination. “Why isn’t that colorable?” he asked Chaffin. More generally, Nelson said, “I am sort of trying to figure out how a district court of any nature is supposed to get in and question whether the president’s assessment of executing the laws is right or wrong.”

Immergut also rejected Trump’s assertion that he was facing “a rebellion or danger of a rebellion” in Portland. Her analysis relied on Breyer’s historically informed understanding of that term: “First, a rebellion must not only be violent but also be armed. Second, a rebellion must be organized. Third, a rebellion must be open and avowed. Fourth, a rebellion must be against the government as a whole—often with an aim of overthrowing the government—rather than in opposition to a single law or issue.”

Applying that definition, Immergut concluded that “the protests in Portland were not ‘a rebellion’ and did not pose a ‘danger of a rebellion,’ especially in the days leading up to the federalization.” While the government “presented evidence of sporadic violence against federal officers and property damage to a federal building,” she said, it did not offer “any evidence demonstrating that those episodes of violence were part of an organized attempt to overthrow the government as a whole.”

Chaffin likewise told the 9th Circuit panel that “the appropriate definition” of “rebellion” is “an open, organized or armed resistance to an established government or an attempt to change the government or the leader, usually through violence.” Nelson suggested that “your definition and perhaps the definition applied by the district court seems so narrow that it doesn’t even comport with” historical examples of militia or National Guard deployments.

On the same day that the 9th Circuit considered the Portland deployment, U.S. District Judge April Perry, a Joe Biden appointee, issued a temporary restraining order against the deployment in Illinois. “I have seen no credible evidence that there is danger of rebellion in the state of Illinois” or that the president is unable to enforce federal law there, she said in court. Echoing Immergut, Perry said the Trump administration’s “perception of events” in the Chicago area is “simply unreliable.” She suggested that calling up the National Guard would “only add fuel to the fire that defendants themselves have started.”

These cases hinge on dueling interpretations of a statute that authorizes federalization of the National Guard “whenever” certain conditions exist, which implies some role for the courts in determining whether the president’s claim that they do is at least “colorable.” But Trump reportedly is mulling whether to invoke the Insurrection Act, which on its face gives him even more leeway.

That antiquated and dangerously vague law includes a provision, 10 USC 252, that applies “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.” In that situation, the president “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.”

As the American Law Institute notes, “unlawful ‘obstructions,’ ‘combinations,’ and ‘assemblages'” are “antiquated terms” that “lack settled contemporary meaning.” But they arguably apply to a wide range of situations, including “generally peaceful” protests marred by “sporadic incidents of violence and disruptive behavior,” as Immergut described the situation in Portland. And because the provision comes into play “whenever the President considers” that such unlawful activity “makes it impracticable” to enforce federal law in the usual way, it seems to leave that determination entirely up to him. Furthermore, the Insurrection Act authorizes the president to use active-duty military personnel as well as the National Guard for law enforcement.

On Monday, Trump said he would invoke the Insurrection Act if “it was necessary.” Why would it be necessary? “If people were being killed and courts were holding us up or governors or mayors were holding us up,” Trump explained, “sure, I’d do that.”

Deadly violence is not actually a condition for invoking the Insurrection Act. But the government’s lawyers already are highlighting that danger to justify the National Guard deployments in Oregon and Illinois, citing the shooting that killed two detainees at an ICE office in Dallas on September 24. The other condition that Trump mentioned apparently depends on how the courts ultimately resolve the National Guard cases. In other words, there is no reason to worry unless the courts try to enforce legal limits on his authority.