Trump Isn’t Waiting for the Insurrection Act To Turn the Military on American Citizens

President Trump teases his backup plan to use the military against Americans in blue cities on a near weekly basis. 

“We have an Insurrection Act for a reason,” he told reporters earlier this month. “If people were being killed and courts were holding us up, or governors or mayors were holding us up, sure, I’d do that.”

Currently, he has federalized and deployed the National Guard under a novel and untested combination of 10 U.S.C. § 12406 — which controls the federalization of the National Guard — and a theory of inherent constitutional presidential power. 

“That all redounds to the president’s benefit,” said Chris Mirasola, a former Defense Department attorney and assistant professor at The University of Houston Law Center, as courts grapple to determine how much presidential discretion this little-used statute affords. 

So far, Trump has lost three of three cases at the district court level. Bipartisan judges from California, Oregon and Illinois all found that conditions on the ground in Los Angeles, Portland and Chicago did not warrant deploying the Guard, that Trump’s discretion did not stretch far enough for him to concoct a wartime fantasy as justification. 

A 9th Circuit panel of two Trump appointees and one Biden appointee blocked the California district court order prohibiting the deployment; another of two Trump appointees and one Clinton one did the same in Oregon. A 7th Circuit panel of Trump, Obama and Bush appointees upheld the district court’s order in Illinois — and the Trump administration immediately appealed to the Supreme Court, which could rule at any moment. 

As these cases percolate, Trump has been dangling the Insurrection Act as his plan B. The Act looms large in the American consciousness, due to being an explicit exception to the Posse Comitatus Act. That means that when it’s invoked, soldiers can do civilian law enforcement — armed active duty troops in fatigues can detain and arrest people. 

But the Trump administration’s interpretation of the powers he’s currently invoking is so expansive that the daylight between where we are now and life under the Insurrection Act is much less than conventional wisdom holds. Justice Department lawyers have been arguing that National Guard troops can do law enforcement activities right now. When a district judge found that the Guard had violated Posse Comitatus in Los Angeles, the administration countered that the troops weren’t bound by it to begin with.

“Their position is simultaneously that the National Guard is not doing law enforcement, but that they could be,” Joseph Nunn, counsel in the Brennan Center’s Liberty and National Security Program focusing on domestic military activity, told TPM.

Experts TPM surveyed had little faith that the Supreme Court would do anything to curb the power Trump is flexing under the current hybrid, making the Insurrection Act superfluous beyond its activation of active duty soldiers in addition to the Guard. 

And if Trump does choose to invoke it, its language is unhelpfully broad and ill-defined. Some experts have been pounding the alarm for years that the Act needs reform to keep Trump (or future, Trump-like figures) from abusing it. Sen. Richard Blumenthal (D-CT) has introduced such a bill a couple times, but it never went anywhere.  

During the Biden years, “there were calls for reform from so many different quarters, but it was a struggle, unfortunately. There was so much folks wanted to do at the same time that it didn’t have the political oomf to get across the line, which had disastrous consequences,” said Mirasola.

Still, sources unanimously agreed that the current protest movements fall comically short of the conditions needed to use either Section 12406 or the Insurrection Act, and that the district courts were much closer to the mark in finding that even broad presidential discretion can be abused. None had faith that the higher courts would hold the line.

Broad presidential powers, a pliant Supreme Court and a vengeful president equal a military presence Americans are unused to seeing on their streets.  

“Americans have always regarded the military as a fundamentally outward facing entity — it exists to protect us from foreign threats,” Nunn said. Not to loiter in metro stations, lay mulch, take selfies with tourists, or loom nearby protests, all the while cradling rifles. 

As always when the military is being turned domestically, the fear is in the escalation. The Guard may be standing around in clumps looking bored now, but what’s next? Why is Trump so hellbent on fighting this multi-front legal war? If, as his lawyers insist, the Guard is not doing any active law enforcement, why push so hard to deploy them into resistant cities? 

Part of it is assuredly the narrative, the optics. Trump likes displays of military strength, revels in distressing the parts of the country that didn’t vote for him. 

And it could be part of a larger plan.

“I would not be surprised if he tries to use the military in the context of the 2026 elections to suppress voter turnout by putting the military in places where Democrats are turning out to vote,” said Chris Edelson, an expert in presidential national security power at American University.

“Donald Trump wants to stay in power as long as he can,” he added, quoting the President: “He’s fighting a ‘war from within.’”