insurrection act

There are few laws President Trump name-checks more frequently than the Insurrection Act.

A 200-year-old constellation of statutes, the act grants emergency powers to thrust active-duty soldiers into civilian police duty, something otherwise barred by federal law.

Trump and his team have threatened to invoke it almost daily for weeks — most recently on Monday, after a reporter pressed the president about his escalating efforts to dispatch federalized troops to Democrat-led cities.

“Insurrection Act — yeah, I mean, I could do that,” Trump said. “Many presidents have.”

Roughly a third of U.S. presidents have called on the statutes at some point — but history also shows the law has been used only in moments of extraordinary crisis and political upheaval.

The Insurrection Act was Abraham Lincoln’s sword against secessionists and Dwight D. Eisenhower’s shield around the Little Rock Nine, the young Black students who were the first to desegregate schools in Arkansas.

Ulysses S. Grant invoked it more than half a dozen times to thwart statehouse coups, stem race massacres and smother the Ku Klux Klan in its South Carolina cradle.

But it has just as often been wielded to crush labor strikes and strangle protest movements. The last time it was invoked, Defense Secretary Pete Hegseth was in elementary school and most U.S. soldiers had not yet been born.

Now, many fear Trump could call on the law to quell opposition to his agenda.

“The Democrats were fools not to amend the Insurrection Act in 2021,” said Kevin Carroll, former senior counsel in the Department of Homeland Security during Trump’s first term. “It gives the president almost untrammeled power.”

It also precludes most judicial review.

“It can’t even be challenged,” Trump boasted Monday. “I don’t have to go there yet, because I’m winning on appeal.”

If that winning streak cools, as legal experts say it soon could, some fear the Insurrection Act would be the administration’s next move.

“The Insurrection Act is very broadly worded, but there is a history of even the executive branch interpreting it narrowly,” said John C. Dehn, an associate professor at Loyola University Chicago School of Law.

The president first floated using the Insurrection Act against protesters in the summer of 2020. But members of his Cabinet and military advisors blocked the move, as they did efforts to use the National Guard for immigration enforcement and the military to patrol the border.

“They have this real fixation on using the military domestically,” Carroll said. “It’s sinister.”

In his second term, Trump has instead relied on an obscure subsection of the U.S. code to surge federalized soldiers into blue cities, claiming it confers many of the same powers as the Insurrection Act.

Federal judges disagreed. Challenges to deployments in Los Angeles, Portland, Ore., and Chicago have since clogged the appellate courts, with three West Coast cases before the U.S. 9th Circuit Court of Appeals and one pending in the 7th Circuit, which has jurisdiction over Illinois.

The result is a growing knot of litigation that experts say will fall to the Supreme Court to unwind.

As of Wednesday, troops in Oregon and Illinois are activated but can’t be deployed. The Oregon case is further complicated by precedent from California, where federalized soldiers have patrolled the streets since June with the 9th Circuit’s blessing. That ruling is set to be reheard by the circuit on Oct. 22 and could be reversed.

Meanwhile, what California soldiers are legally allowed to do while they’re federalized is also under review, meaning even if Trump retains the authority to call up troops, he might not be able to use them.

Scholars are split over how the Supreme Court might rule on any of those issues.

“At this point, no court … has expressed any sympathy to these arguments, because they’re so weak,” said Harold Hongju Koh, a professor at Yale Law School.

Koh listed the high court’s most conservative members, Clarence Thomas and Samuel A. Alito Jr., as unlikely to push back against the president’s authority to invoke the Insurrection Act, but said even some of Trump’s appointees — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — might be skeptical, along with Chief Justice John G. Roberts Jr.

“I don’t think Thomas and Alito are going to stand up to Trump, but I’m not sure that Gorsuch, Kavanaugh, Barrett and Roberts can read this statute to give him [those] powers.”

The Insurrection Act sidesteps those fights almost entirely.

It “would change not only the legal state of play, but fundamentally change the facts we have on the ground, because what the military would be authorized to do would be so much broader,” said Christopher Mirasola, an assistant professor at the University of Houston Law Center.

Congress created the Insurrection Act as a fail-safe in response to armed mobs attacking their neighbors and organized militias seeking to overthrow elected officials. But experts caution that the military is not trained to keep law and order, and that the country has a strong tradition against domestic deployments dating to the Revolutionary War.

“The uniformed military leadership in general does not like getting involved in the domestic law enforcement issue at all,” Carroll said. “The only similarities between police and military is that they have uniforms and guns.”

Today, the commander in chief can invoke the law in response to a call for help from state leaders, as George H.W. Bush did to quell the 1992 Rodney King uprising in L.A.

The statute can also be used to make an end-run around elected officials who refuse to enforce the law, or mobs who make it impossible — something Eisenhower and John F. Kennedy Jr. did in defense of school integration.

Still, modern presidents have generally shied from using the Insurrection Act even in circumstances with strong legal justification. George W. Bush weighed invoking the law after Hurricane Katrina created chaos in New Orleans but ultimately declined over fears it would intensify the already bitter power struggle between the state and federal government.

“There are any number of Justice Department internal opinions where attorneys general like Robert Kennedy or Nicholas Katzenbach said, ‘We cannot invoke the Insurrection Act because the courts are open,’” Koh said.

Despite its extraordinary power, Koh and other experts said the law has guardrails that may make it more difficult for the president to invoke it in the face of naked bicyclists or protesters in inflatable frog suits, whom federal forces have faced down recently in Portland.

“There are still statutory requirements that have to be met,” said Dehn, the Loyola professor. “The problem the Trump administration would have in invoking [the law] is that very practically, they are able to arrest people who break the law and prosecute people who break the law.”

That may be why Trump and his administration have yet to invoke the act.

“It reminds me of the run-up to Jan. 6,” Carroll said. “It’s a similar feeling that people have, a sense that an illegal or immoral and unwise order is about to be given.”

He and others say an invocation of the Insurrection Act would shift widespread concern about military policing of American streets into existential territory.

“If there’s a bad faith invocation of the Insurrection Act to send federal troops to go beat up anti-ICE protesters, there should be a general strike in the United States,” Carroll said. “It’s a real break-the-glass moment.”

At that point, the best defense may come from the military.

“If a really unwise and immoral order comes out … 17-year generals need to say no,” Carroll said. “They have to have the guts to put their stars on the table.”

After days of fiery protest against federal immigration raids, Los Angeles residents and officials braced for the arrival of hundreds of U.S. Marines on Tuesday in what some called an unprecedented and potentially explosive deployment of active-duty troops with hazy mission objectives.

As Trump administration officials vowed to crack down on “rioters, looters and thugs,” state and local officials decried the mobilization of 700 troops from the Marine Corps Air Ground Combat Center in Twentynine Palms, calling it a clear violation of law and civility. L.A. Mayor Karen Bass even likened the deployment to “an experiment” that nobody asked to be a part of.

According to the U.S. Northern Command, which oversees troops based in the United States, the Marines will join “seamlessly” with National Guard troops under “Task Force 51” — the military’s designation of the Los Angeles forces. The Marines, like the Guard, they said, “have been trained in de-escalation, crowd control and rules for the use of force.”

Air Force Gen. Gregory Guillot told The Times on Tuesday that the Marines in Los Angeles were limited in their authority, deployed only to defend federal property and federal personnel. They do not have arrest power, he said.

“They are not law enforcement officers, and they do not have the authority to make arrests,” Guillot said. “There are very unique situations where they could detain someone … but they could only detain that person long enough to hand it off to a proper law enforcement official.”

But military experts have raised practical concerns about the unclear parameters of the Marines’ objective. They also warn that sending in Marines without a request from a governor — a highly unusual step that has not been made since the civil rights era in 1965 — could potentially inflame the situation.

U.S. Marines are trained for overseas conflict zones, with deployments in recent decades in Iraq, Syria and Afghanistan. But the roles they have played in those nations — including providing artillery support to coalition forces fighting against Islamic State militants and advising and training local security forces — are quite different from what they might face as they confront protesters in Los Angeles.

“Marines are trained to fight, that’s the first thing they’re trained to do,” said Jennifer Kavanagh, director of military analysis at Defense Priorities, a military research group. “So I think you do have a little bit of mismatch in skills here.”

“In a crisis, when they’re forced to make a snap decision, do they have enough training and experience to make the one that de-escalates the situation rather than escalates it? I think that’s a question mark,” Kavanagh said.

Hours after Defense Secretary Pete Hegseth told congressional lawmakers Tuesday that the mobilization of troops to Los Angeles to curtail protests would cost $134 million, President Trump told U.S. Army troops at Ft. Bragg in North Carolina that he deployed thousands of National Guard troops and hundreds of Marines “to protect federal law enforcement from the attacks of a vicious and violent mob.”

But city and state officials have repeatedly said that troops are not necessary to contain the protests.

On Monday night, California Gov. Gavin Newsom called the deployment of Marines “a blatant abuse of power” and filed a lawsuit seeking to overturn the deployment.

Los Angeles Police Chief Jim McDonnell warned that — “absent clear coordination” — the prospect of Marines descending on Los Angeles “presents a significant logistical and operational challenge for those of us charged with safeguarding this city.”

However, Guillot said coordinating among different agencies “hasn’t been a challenge to us at all.”

“I think people understand that we’re there for a very specific purpose,” he said. “We’re very highly trained, professional and disciplined, and people have been very cooperative so far.”

By Tuesday afternoon, all 700 Marines had arrived in the Greater Los Angeles area, Guillot said. At least one convoy of U.S. Marine vehicles from Twentynine Palms had arrived at Orange County’s Naval Weapons Station Seal Beach under police escort.

The mobilized Marines and National Guard troops will be stationed in facilities across the region, including Seal Beach, Los Alamitos and a number of National Guard armories, Guillot said. He didn’t provide further details.

Over the last few days, National Guard members have already been stationed at a few federal buildings and have accompanied Immigration and Customs Enforcement agents on missions, Guillot said. He expects Marines will be mobilized on the ground Wednesday, if not Tuesday evening, after wrapping up final training.

It is rare for U.S. Marines to be sent to an American city. The last time they were deployed in the U.S. was after riots broke out in Los Angeles in 1992 after the acquittal of four LAPD officers who were recorded beating a Black motorist, Rodney G. King.

Back then, President George H.W. Bush acted at the request of California Gov. Pete Wilson and Los Angeles Mayor Tom Bradley after what The Times described as “three days of the worst urban unrest in Los Angeles history.”

Deploying Marines to Los Angeles is not only a dramatic escalation of events, but also potentially illegal, according to Abigail Hall, a defense scholar and senior fellow at the Independent Institute, a nonprofit think tank based in Oakland.

Bringing in the Marines to L.A., she said, violates the Posse Comitatus Act, an 1878 law enacted after the Civil War, which forbids active-duty federal forces to provide regular civilian law enforcement unless authorized by Congress or the president invokes the Insurrection Act.

Trump has yet to invoke the Insurrection Act.

“I don’t see any way that this is not a direct violation of the Posse Comitatus Act,” Hall said. “We’re not at war, we’ve not invoked the Insurrection Act of 1807 — and even if we did, that’s what the National Guard is for. It’s not what the Marines are for.”

Kavanagh didn’t comment on the deployment’s legality, but called it unprecedented in modern times. She worried that could make its mission and parameters unclear for troops.

The last time the military was deployed without a governor’s request or approval, military experts said, was to facilitate court-ordered desegregation in Southern states during the civil rights movement in the 1960s.

Kori Schake, senior fellow and director of foreign and defense policy studies at the American Enterprise Institute, said the Trump administration appeared to be trying out a new way to get around the restrictions on domestic law enforcement by the American military.

“The authority the president is claiming is his constitutional authority under what’s called the Take Care clause … he’s claiming the federal responsibility to protect federal agents and federal property operations. That authority has never been tested in court.”

Such an approach, Schake said, was fraught with more than legal risk.

“If violence burgeons, tempers are running high, the Marines are armed, this could spiral out of control,” Schake said.

The L.A. deployment, Kavanagh said, could also be a jarring mission for Marines who signed up to go abroad and defend America’s freedom — and instead are facing off with fellow citizens.

“Does everyone know the rules of engagement?” Kavanagh asked of the L.A. mission. “Are they clear?”

She also worried that the troops deployed to L.A. are likely to have some of the most limited experience. Guard members are not full time and undergo less frequent training, and Marines retain the youngest service members of all the military branches. Nearly three-quarters of active-duty enlisted members of the Marine Corps are 25 or younger, according to a 2022 Department of Defense report. The average age is 24, compared with 27 for the Army and 28 for the Air Force.

Schake, however, pointed out that although Marines may be the youngest cohort in the military, they are well trained in de-escalation tactics.

“The wars that the United States has been fighting for the last 25 years have required incredible discipline on the use of force by the military in Afghanistan and in Iraq in particular, so they are trained for de-escalating conflict,” Schake said. “I think actually, it’s quite possible they’re better trained at de-escalation of violence than the police forces are.”

In that sense, Schake said she was less worried about violence on the streets than about “creeping authoritarianism.”

“The way the president, that Homeland secretary, the secretary of Defense, the White House press spokesman are talking is incendiary and reckless,” Schake said.

“They’re calling the city of Los Angeles — where 1 in 40 Americans live — a hellscape, and everybody in the city a criminal. They’re describing protests that are really peaceful as an insurrection. And that’s a very reckless thing to do in a difficult situation.”

Times staff writers Hayley Smith and Christopher Buchanan contributed to this report.

The Trump administration announced Saturday that National Guard troops were being sent to Los Angeles — an action Gov. Gavin Newsom said he opposed. President Trump is activating the Guard by using powers that have been invoked only rarely.

Trump said in a memo to the Defense and Homeland Security departments that he was calling the National Guard into federal service under a provision called Title 10 to “temporarily protect ICE and other United States Government personnel who are performing Federal functions.”

What is Title 10?

Title 10 provides for activating National Guard troops for federal service. Such Title 10 orders can be used for deploying National Guard members in the United States or abroad.

Erwin Chemerinsky, one of the nation’s leading constitutional law scholars, said “for the federal government to take over the California National Guard, without the request of the governor, to put down protests is truly chilling.”

“It is using the military domestically to stop dissent,” said Chemerinsky, dean of the UC Berkeley School of Law. “It certainly sends a message as to how this administration is going to respond to protests. It is very frightening to see this done.”

Tom Homan, the Trump administration’s “border czar,” announced the plan to send the National Guard in an interview Saturday on Fox News as protesters continued confronting immigration agents during raids.

“This is about enforcing the law,” Homan said. “We’re not going to apologize for doing it. We’re stepping up.”

“We’re already ahead of the game. We were already mobilizing,” he added. “We’re gonna bring the National Guard in tonight. We’re gonna continue doing our job. We’re gonna push back on these people.”

Newsom criticized the federal action, saying that local law enforcement was already mobilized and that sending in troops was a move that was “purposefully inflammatory” and would “only escalate tensions.”

The governor called the president and they spoke for about 40 minutes, according to the governor’s office.

Other rarely used powers

Critics have raised concerns that Trump also might try to invoke the Insurrection Act of 1807 to activate troops as part of his campaign to deport large numbers of undocumented immigrants.

The president has the authority under the Insurrection Act to federalize the National Guard units of states to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” that “so hinders the execution of the laws” that any portion of the state’s inhabitants are deprived of a constitutional right and state authorities are unable or unwilling to protect that right.

The American Civil Liberties Union has warned that Trump’s use of the military domestically would be misguided and dangerous.

According to the ACLU, Title 10 activation of National Guard troops has historically been rare and Congress has prohibited troops deployed under the law from providing “direct assistance” to civilian law enforcement — under both a separate provision of Title 10 as well as the Posse Comitatus Act.

The Insurrection Act, however, is viewed as an exception to the prohibitions under the Posse Comitatus Act.

In 1958, President Eisenhower invoked the Insurrection Act to deploy troops to Arkansas to enforce the Supreme Court’s decision ending racial segregation in schools, and to defend Black students against a violent mob.

Hina Shamsi, director of the ACLU’s National Security Project, wrote in a recent article that if Trump were to invoke the Insurrection Act “to activate federalized troops for mass deportation — whether at the border or somewhere else in the country — it would be unprecedented, unnecessary, and wrong.”

Chemerinsky said invoking the Insurrection Act and nationalizing a state’s National Guard has been reserved for extreme circumstances in which there are no other alternatives to maintain the peace.

Chemerinsky said he feared that in this case the Trump administration was seeking “to send a message to protesters of the willingness of the federal government to use federal troops to quell protests.”

In 1992, California Gov. Pete Wilson requested that President George H.W. Bush use the National Guard to quell the unrest in Los Angeles after police officers were acquitted in the beating of Rodney King. That was under a different provision of federal law that allows the president to use military force in the United States. That provision applies if a state governor or legislature requests it.

California politics editor Phil Willon contributed to this report.