{"id":112660,"date":"2025-10-13T16:12:44","date_gmt":"2025-10-13T21:12:44","guid":{"rendered":"https:\/\/milesfortis.com\/?p=112660"},"modified":"2025-10-13T16:12:44","modified_gmt":"2025-10-13T21:12:44","slug":"112660","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=112660","title":{"rendered":""},"content":{"rendered":"

My latest Substack essay: The Insurrection Act: A short guide to President Trump\u2019s options.<\/a><\/p>\n

With resistance to ICE in many blue cities, there\u2019s been a lot of talk about Trump invoking the Insurrection Act. There are other, lesser statutes that he can employ, but this is the big gun. It intentionally gives the President enormous freedom and power to put down resistance to the law.<\/p>\n

This is the\u00a0relevant part<\/a>\u00a0of the Insurrection Act:<\/p>\n

\u00a7252. Use of militia and armed forces to enforce Federal authority<\/em><\/h3>\n
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Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.<\/em><\/div>\n
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So first, it\u2019s discretionary to employ: \u201cWhenever\u00a0the President considers.<\/em>\u201d This language leaves no room for judicial review, by design; it\u2019s up to the President to determine when the predicates for invoking the Act apply. Second, this phrase, \u201cunlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings,\u201d seems to fit perfectly with what\u2019s going on in places like Portland or Chicago.<\/p>\n

Third, discretionary language again: \u201cas he considers necessary<\/em>\u00a0to enforce those laws or to suppress the rebellion.\u201d<\/p>\n

It\u2019s entirely up to the President under the statute. You may think it\u2019s a bad idea — I\u2019m not so sure it is, because I don\u2019t think it\u2019s a good idea for state and local governments to have a veto on federal law enforcement actions — but it\u2019s entirely lawful. And, properly understood, not subject to judicial review. (The Insurrection Act, once triggered, also overrides the Posse Comitatus Act\u2019s prohibition on using the military for law enforcement purposes.)<\/p>\n

Invoking the Insurrection Act wouldn\u2019t be unprecedented \u2014 it\u2019s been done\u00a0thirty times<\/a>\u00a0in the history of the Republic, or a bit less than once every 8 years. A state actively resisting federal authority could be met with the full power of the U.S. military \u2014 and the President could even recognize a competing,\u00a0alternative state government.<\/a>\u00a0There\u2019s no meaningful opportunity for judicial review under the Insurrection Act as its invocation is a\u00a0\u201cpolitical question\u201d<\/a>\u00a0and hence non-justiciable. (The same is true, as the Supreme Court held almost 200 years ago, in the case of\u00a0Luther v. Borden,<\/em>\u00a0of recognizing<\/a>\u00a0one of two competing state governments as the legitimate government of a state).<\/p>\n

\u201cPolitical question\u201d just means that the decision is left to one or both of the political branches of the government, leaving no room for judicial resolution. There is discipline, just not judicial discipline; instead it comes ultimately from voters.<\/p>\n

And invocation of the Insurrection Act carries a special political resonance, though how much of one depends on how it is used. Using it to send troops to Portland to control a mob isn\u2019t likely to be too controversial. Using it to\u00a0replace<\/a>\u00a0the government of California, or to support a breakaway state of \u201cNew California,\u201d would be more so.<\/p>\n

Unless pushed, I don\u2019t think Trump will go very far with this. Politically, it suits him to have Democrats, who yammered about \u201cinsurrection\u201d for the past several years, acting loudly insurrectionary. And he seems to be able to accomplish a lot with threats \u2014 a threat to send the National Guard in to Chicago produced a sudden flurry of action from the Illinois State Police.<\/p>\n

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As Clay Whitehead used to say, the value of the Sword of Damocles is that it hangs, not that it falls. That may be the case here, too. But if the sword of the Insurrection Act falls, it can fall very heavy indeed.<\/p>\n","protected":false},"excerpt":{"rendered":"

My latest Substack essay: The Insurrection Act: A short guide to President Trump\u2019s options. With resistance to ICE in many blue cities, there\u2019s been a lot of talk about Trump invoking the Insurrection Act. There are other, lesser statutes that he can employ, but this is the big gun. It intentionally gives the President enormous … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[14,13],"tags":[],"class_list":["post-112660","post","type-post","status-publish","format-standard","hentry","category-editorial-o-the-day","category-law-order"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/112660","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=112660"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/112660\/revisions"}],"predecessor-version":[{"id":112661,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/112660\/revisions\/112661"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=112660"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=112660"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=112660"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}