Trump floats invoking the Insurrection Act to go around courts which won't let him deploy troops into states

__Trump on Monday said that he would consider invoking the Insurrection Act “if it was necessary,” particularly if the courts or state and local officials delay his plans for deploying the National Guard.

"I’d do it if it was necessary. So far it hasn’t been necessary. But we have an Insurrection Act for a reason," Trump told reporters in the Oval Office when asked under what conditions he would consider the rarely used 19th century law.

"If I had to enact it, I'd do that. If people were being killed, and courts were holding us up, or governors or mayors were holding us up, sure, I'd do that. I mean I want to make sure that people aren't killed, we have to make sure that our cities are safe," he added.

https://www.msn.com/en-us/news/politics/trump-floats-invoking-the-insurrection-act/ar-AA1NYLpy


...this wouldn't be a normal invoking of the Innsurrection Act. A few mid-20th century presidents (e.g., Eisenhower in 1957 for desegregation, Johnson in 1965 for Selma marches) used it to defend civil rights. Of some 30 other invocations, most leaned toward government prerogatives, though many protected citizens.

However, this president intends to use the act to deploy troops in defense against protestors primarily demonstrating against the government's intention to deploy and exercise troops against them.

While it's true that the 1807 Insurrection Act empowers the president to deploy Armed Forces and National Guard, there is a list of conditions; like in defense of deprivation of constitutionally secured rights; and only where the state is unable, fails, or refuses.

Historically, no court has blocked a presidential invocation of the Insurrection Act for troop deployments, as the authority is broad and challenges rare (e.g., upheld in Prize Cases, 1863).

Past court challenges to presidential authority under the Insurrection Act or similar powers include:

- Martin v. Mott (1827): Supreme Court upheld the President's exclusive authority to determine an exigency for militia call-out, deeming it conclusive.

- Sterling v. Constantin (1932): Court ruled that while governors (and by extension presidents) have discretion, courts can review if actions exceed lawful bounds or involve bad faith.

Sterling v. Constantin (1932) involved Texas Governor Ross S. Sterling declaring martial law in 1931 to limit oil production in East Texas amid overproduction and unrest, citing "insurrection" to enforce conservation laws. Oil producers challenged it as violating their 14th Amendment due process rights. Supreme Court result: Affirmed lower court's injunction, holding executive emergency actions are subject to judicial review; no actual insurrection existed, so restrictions were unconstitutional. (287 U.S. 378)

Presidents involved in similar court challenges to their invoking of the insurrection act and subsequent military deployment include:

- Abraham Lincoln (Civil War, Prize Cases, 1863): Supreme Court upheld blockade and insurrection response.

- Grover Cleveland (Pullman Strike, In re Debs, 1895): Court confirmed military use to protect commerce.

- Dwight Eisenhower (Little Rock desegregation, 1957): State challenges failed; federal courts affirmed deployment.

The section of the Insurrection Act which would enable the president to justify deploying armed forces or national guard into cities under the pretext of protecting ICE immigration forces may potentially be Section 332 of the Insurrection Act (10 U.S.C. § 332), allowing deployment if unlawful obstructions hinder enforcement of federal laws

The administration has not specified any Insurrection Act section for this; recent actions to protect ICE use 10 U.S.C. § 12406 for National Guard activation instead.

The Insurrection Act (10 U.S.C. §§ 251-255) requires these prerequisites before presidential deployment of troops: (which may or may not be defensible in a court)

- §251: Request from state legislature or governor for insurrection aid.
- §252: President determines unlawful acts make federal law enforcement impracticable.
- §253: Interference with laws or rights deprivation, where state can't/won't act.
- §254: Issue a proclamation ordering dispersal (required except in urgent cases like invasion).

Under 10 U.S.C. § 252 of the Insurrection Act, the President determines enforcement is "impracticable" by assessing if unlawful obstructions, assemblages, or rebellion hinder federal laws via ordinary judicial means. This is based on the President's judgment.

And yes, the President can make this determination unilaterally, without prior consent from Congress or courts, though actions may face later review.


(additions to this more than welcome)