The Trump administration has been deliberating over when and how the Insurrection Act could be invoked—something a president has not done in over 30 years.
Officials are “seriously discussing” the move amid President Donald Trump’s escalating efforts to deploy National Guard troops into big cities in blue states like Chicago and Portland, NBC News reported Wednesday.
White House Deputy Chief of Staff Stephen Miller, who has stressed how Trump has “plenary authority,” has had a leading role in deliberations on the topic since Trump took office, five sources told NBC News.
Miller has depicted those protesting ICE in Portland and Chicago as engaging in an organized “insurrection.”
“This is an all-out campaign of insurrection against the sovereignty of the United States because the Democrat Party and those who are committing violence in this country do not believe in the legitimacy of the sovereign territory of the United States, and they don’t want any of these illegal aliens to go home,” Miller told reporters at the White House on Monday.
One potential reason for invoking the act, one administration official told NBC News, would be if local law enforcement doesn’t offer protection to federal authorities, whether ICE or another agency.
Trump has run into legal hurdles regarding the Oregon city, with a federal judge on Sunday blocking the deployment of troops there. Another judge previously said his troop deployment to Los Angeles was illegal—a decision the administration is appealing.
Invoking the Insurrection Act would be considered as a last resort, a senior administration official and someone close to the White House told NBC News. In preparation for that potential development, officials have drafted legal defenses. They expect the matter to ultimately be decided by the Supreme Court, and are working on how to legally justify the invocation of the 1807 law.
“Ultimately it’s the president’s vision and the president’s policies that he got elected to implement that the attorneys are just working hard to defend,” the White House official told NBC. “We’re working hard to look at the law and say, ‘How do we achieve the president’s vision?’”
When reached for comment, White House Spokesperson Abigail Johnson told the Daily Beast:
“Amidst ongoing violent riots and lawlessness, that local leaders like Pritzker have refused to step in to quell, President Trump has exercised his lawful authority to protect federal officers and assets. President Trump will not turn a blind eye to the lawlessness plaguing American cities.”
Johnson similarly told NBC News:
“The Trump administration is committed to restoring law and order in American cities that are plagued by violence due to Democrat mismanagement. And President Trump will not stand by while violent rioters attack federal law enforcement officers. The administration will work to protect federal assets and officers while making American cities safe again.”
The Insurrection Act allows the president to deploy troops when governors or state legislatures request so or when he deems there to be “unlawful obstructions, ”rebellion" or “insurrection” taking place. Trump said this week that he would invoke it “if people were being killed, and courts were holding us up, or governors or mayors were holding us up.”
Trump previously considered invoking the act during the 2020 social justice protests that sprung up following the murder of George Floyd by a Minneapolis police officer. Trump regretted not doing so, a senior administration official told NBC News, adding that that is factoring into the current situation. Trump also mulled invoking the law this June amid anti-Immigration and Customs Enforcement protests in Los Angeles.
The Insurrection Act was last used in 1992 by George H. W. Bush during the Los Angeles riots. Before that, Presidents Eisenhower, Kennedy and Johnson invoked it when southern states refused to follow court orders to desegregate.
