As the courts decide whether President Donald Trump has the authority to deploy the National Guard in Chicago, he has another potential path toward sending military troops onto city streets.
Trump has publicly flirted with the idea of invoking the Insurrection Act, the 218-year-old law that grants the president broad powers to activate troops within U.S. borders to quell rebellions and enforce laws.
“We have an Insurrection Act for a reason,” Trump said . “If people were being killed and courts were holding us up or governors or mayors were holding us up, sure, I would do that.”
Gov. JB Pritzker and Illinois Attorney General Kwame Raoul are doing everything they can to hold up Trump’s attempted deployment, which a federal judge has temporarily blocked. Trump has appealed that ruling to the U.S. Supreme Court.
“There is not an insurrection going on in Chicago,” Pritzker said. “I am concerned that he will just ignore the law and try to enact the Insurrection Act and use his people, who seem to be sycophants to the end, to defend him as he’s carrying out unlawful acts.”
The Sun-Times talked to experts about what an invocation of the Insurrection Act could mean for Chicago.
What was the Insurrection Act designed to do?
President Thomas Jefferson signed the Insurrection Act in 1807, but some of the statutes it contains date back to George Washington’s second term, when factions rebelled against the new federal government. Other statutes were added in the aftermath of the Civil War to suppress revolts across the South.
While the framers of the Constitution sought to limit military presence in civilian life, the Insurrection Act gives presidents power to deploy the military without congressional approval in response to “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States.”
Without a clear definition of a rebellion, the law “leaves a lot of room for interpretation by the president,” according to Ohio Northern University Professor Dan Maurer, an expert in national security law and military justice.
“Frankly, I’m surprised that [Trump] hasn’t used the Insurrection Act at all yet, because that’s the easiest way to get troops on the streets, executing the law,” Maurer said.
How has President Trump tried to deploy National Guard members so far?
The Trump administration has moved to deploy the Guard in Chicago under Title 10, Section 12406 of U.S. Code, which allows the president to call in troops when there’s a foreign invasion or a domestic rebellion. Trump’s Justice Department argues that federal immigration enforcement facilities in the Chicago area are under attack.
The criteria listed under Section 12406 sound a lot like the ones listed in the Insurrection Act, but there’s a key distinction. Troops activated under this law are limited in the scope of their duties by another old law, the Posse Comitatus Act of 1878, which bars the military from being used to enforce civilian laws.
That means presidents can’t use the military as a domestic police force; Guard members activated in this manner can only support local law enforcement.
The Insurrection Act is an exception to Posse Comitatus, giving troops power to enforce laws.
And while Trump administration lawyers argue Section 12406 defers to the president on the definition of a rebellion, “the Insurrection Act is deference on steroids,” according to Steven Schwinn, ca onstitutional law professor at UIC.
“This is one of those areas where the president is likely to have a tremendous amount of deference in determining what is an insurrection and therefore when to invoke the Insurrection Act and deploy the National Guard,” Schwinn said.
When is the last time a president invoked the Insurrection Act?
Presidents have used the Insurrection Act to deploy troops 29 times, most recently in 1992 when George H.W. Bush activated the Guard in Los Angeles in response to the civil unrest that followed the acquittal of police officers who beat Rodney King. California Gov. Pete Wilson requested that intervention to bypass Posse Comitatus so that Guard members had the authority to enforce the law.
The 33 years that have passed since then mark the longest stretch the nation has gone without a president invoking the Insurrection Act.
“We are not a society that uses the military for domestic law enforcement. We just don’t do that,” Schwinn said. “To invoke the Insurrection Act and to change that norm would be a substantial change in the norms and culture of the United States.”
Why is that a big deal?
If unchecked, Trump’s potential invocation of the Insurrection Act would set an “extremely dangerous” precedent, Maurer said.
“It’s basically Trump saying, ‘I’m the president. I get to decide what constitutes a threat, and I get to decide what to do about it. If crime goes up 4 percentage points, let’s deploy the military,’” said Maurer, a retired Army lieutenant colonel.
“Suddenly, you have a new norm created where the American military is policing our own people. That may be fine in other countries, but that’s not fine in our country, if historical precedent matters, if norms matter and if we care at all about what the framers of the Constitution wanted our military to do or not do.”