DONALD TRUMP’S ALLIES have reportedly laid the groundwork so that if he returns to the presidency, he can deploy the U.S. military against domestic protesters using the Insurrection Act, an old, deeply flawed law that lies around like a loaded gun, just waiting to be wielded by a would-be tyrant.
An in-depth report in the New York Times on Saturday looks at Trump’s longstanding desire to deploy the military on American soil and the legal and political advisers working to justify such an order. Just simply states: “This would have profound implications for civil liberties and traditional limits on the power of the federal government.”
Let’s not beat around the bush: This is about whether we will have a country ruled by military force whenever a president chooses to use it. Whether our freedom will be suppressed at gunpoint or strengthened by our voices and our vote.
Originally enacted in 1807 and last modified 1871The Insurrection Act is vaguely worded and allows presidents to send the army or the National Guard into a state “when the President believes that unlawful obstructions … or assembly, or rebellion against the authority of the United States, make the enforcement of the laws impossible.” It creates a Exception another law, the Posse Comitatus Law“that federal military personnel are fundamentally excluded from participation in civilian law enforcement.”
More than once during his time in office, Donald Trump attempted to invoke the Insurrection Act. He reportedly expressed interest in deploying the military to end the violent protests that followed the police killing of George Floyd in Minnesota, which he was asked to by Senator Tom Cotton of Arkansas. White House staff have reportedly even prepared an executive order invoking the Insurrection Act allowing the deployment of troops for marches in the streets of Washington DC. At the time, Secretary of Defense Mark Esper and General Mark Milley, the chairman of the Joint Chiefs of Staff, apparently stopped Trump from doing so.
But that was then.
Do not believe for a moment that just because we and the Constitution barely survived a first Trump administration that our freedom will survive a second one. In fact, Esper warned last year that Trump would invoke the Insurrection Act immediately after his inauguration in January 2025.
It is not difficult to imagine the man whom the courts found to be a January 6 insurrectionist using the Insurrection Act against non-insurrectionists. “Mr. Trump has boasted” that Just reported that “when he returns to the White House, he will send troops without local authorities asking him to intervene.”
So much for a GOP that once aimed at the balance between federal and state power and respect for the authority of the states in dealing with matters of public policy.
Just reporter viewed a 2023 email from staff at the Center for Renewing America, one of several new think tanks close to Trump. The email discussed ideas that, as the Times put it, “could be unilaterally implemented by a president.”
Below: “Uprising – Stop the riots – Day 1, simple.”
Does “Day 1” mean anything to you? That is the day Trump said he would be a dictator. And if you think the courts can stop the president, then you probably haven’t heard about the Supreme Court’s July 1 decision on presidential immunity, which Putting Trump above the law.
IF DONALD TRUMP WERE DEFEATED and a new Congress were willing to do so, it is not difficult to imagine some corrections to the Insurrection Act to ensure that it is not abused. For example, the law could be amended to require a president to use its powers only as a last resort when local law enforcement is inadequate. In addition, Congress should more precisely define the conditions under which the president can invoke the laws –Conditions such as “unlawful obstruction … or assembly” that “makes the enforcement of the law impossible.”
In April a working group convened by the American Law Institute proposed amending the law so that no president can use the military unless there is violence that “overwhelms the ability of federal, state and local authorities to protect public safety.” In addition to this change, a Harris administration should also urge Congress to change the language of the current law, which says that a president could respond to “unlawful obstruction” by “using the militia or the armed forces, or both, or in any other way“ (emphasis added).
The Brennan Center for Justice has identified the grave Danger in this language:
This disturbing transfer of unlimited power explains why the Oath Keepers and similar groups pinned their hopes on this bill. Congress defines “militia” as: “All able-bodied males at least 17 years of age and … under 45 years of age who are or have declared an intention to become citizens of the United States, and female citizens of the United States who are members of the National Guard.” A significant portion of the membership of white supremacist organizations would likely fit this definition, and theoretically the others could be mobilized on the condition “by any other means.”
Maybe Trump would only choose from the ranks of white supremacist militias.the very fine people”, as he infamously said in 2017 after the violent “Unite the Right” rally in Charlottesville, these existed “on both sides”. “Blood and soil” was the Nazi slogan they chanted, and any abuse of the Insurrection Act by the Trump administration could easily result in innocent blood being shed on American soil.
Protecting democracy and freedom depends on ensuring that Trump never again wields the vast power of the presidency. But it will also require electing a due process-based Congress to correct the Insurrection Act and prevent its abuse in the future. Our rights to free speech and assembly, guaranteed by the First Amendment, and the nation’s domestic peace will be on the line in November.
