The Potential Use of the Insurrection Act: A Step Towards Authoritarian Control?

With President Trump continually dominating the media landscape, it’s crucial to consider the possible implementation of the Insurrection Act. One of Trump’s presidential directives mandates that the Secretary of Defense and the Secretary of Homeland Security provide a joint report by April 20. The report will detail any necessary actions to achieve “complete operational control of the southern border,” including the potential invocation of the Insurrection Act of 1807.

President Trump has always favored direct control, which makes the invocation of the Insurrection Act seem highly likely. This law, though seldom used, grants the president the authority to deploy U.S. military and federalized National Guard troops within the United States with minimal legal constraints. The act has been used in the past by several presidents, most notably during the Civil War under Abraham Lincoln, to suppress insurrections and maintain law and order.

Understanding the Insurrection Act

The Insurrection Act, now part of Title 10 of the U.S. Code, allows the president to call forth the militia or armed forces to suppress insurrections or unlawful obstructions to the law. The law, however, offers little clarity on what constitutes an “insurrection,” leaving the president with broad discretion. Although the courts reserve the right to review the constitutionality of military actions, enforcement remains challenging under this provision.

The Posse Comitatus Act, which generally prohibits military involvement in civilian law enforcement, is suspended when the Insurrection Act is invoked. This suspension could allow the president to deploy the military for tasks such as border enforcement, surveillance, or even shutting down protests. This could be a major concern, given the past abuse of the act and its potential for overreach.

Historical Context and Modern Application

The Insurrection Act has a checkered history of use. Presidents like Lincoln, Grant, and Bush invoked it to manage civil unrest, including during the Civil War and the L.A. riots. Despite its legal foundation, its potential for abuse remains significant. Trump’s approach to governance has often involved stretching executive power, making the Insurrection Act a possible tool in his quest for control.

A scenario played out by the Brennan Center for Justice highlights potential chaos. In this tabletop exercise, Trump orders military action to secure the border and assist ICE in deportation efforts. Military reluctance, a strained bureaucracy, and public outrage slow the operation down, but Trump’s determination to use force remains clear.

Trump’s Likely Moves

The scenario we examined offers key insights into how Trump might use the Insurrection Act. While military leaders may resist direct interaction with civilians, Trump could leverage private militias to carry out border enforcement. This approach would likely result in violence, public outrage, and possible legal challenges. However, public pressure would be a significant constraint, as courts and military officials would be forced to address gross constitutional violations.

Though it’s not guaranteed, Trump may use the Insurrection Act to gain control of the southern border initially. Over time, he could expand the scope of the law to target political opponents, criminalize protests, or even suppress dissent in blue-state cities.

What Can We Do?

The invocation of the Insurrection Act presents several challenges, but it also offers an opportunity for proactive resistance. Activists can adopt strategies of refusal, resistance, and ridicule to challenge Trump’s authoritarian tactics:

1. Refusal: While it’s unlikely the military will outright refuse orders, governors could preemptively call up their state National Guards to block federal control. This would prevent the federal government from repurposing them to suppress protests.
2. Resistance: Nonviolent protest remains an essential tool for resistance. The public must document interactions with military forces and hold them accountable for any violations of constitutional rights. This includes videotaping confrontations and ensuring legal protection for protestors.
3. Ridicule: Humor can be a powerful weapon against authoritarianism. Activists can mock Trump’s actions in creative ways, as seen in past protests where absurdity exposed the vulnerability of strongman tactics. Playful yet pointed actions can undermine the fear tactics employed by Trump’s administration.

Conclusion

The potential use of the Insurrection Act under Trump’s leadership is a serious concern for civil liberties and democratic values. As history has shown, such powers can be easily abused, leading to widespread repression. It’s essential for activists, political leaders, and citizens to stay vigilant and prepared. By projecting calm, unity, and nonviolence, we can resist efforts to use the military as a tool for political control.