The Insurrection Act

Can Trump shut down protests using the military under the Insurrection Act? What would it take? The answer is complicated, but as more and more protests take place, understanding that legal terrain has become increasingly important. While invocation of the Act doesn’t look imminent, it’s always good to understand the law in advance. That’s our mission tonight.

First, a reminder about the importance of peaceful, nonviolent protests, the approach successfully adopted by Dr. Martin Luther King, Jr., to fuel the civil rights movement in the 1960s. When Dr. King organized sit-ins in public spaces in Birmingham, Alabama, in 1963, the images that were projected across the country showed white Birmingham police officers turning pressurized hoses and aggressive police dogs against peaceful demonstrators. Peaceful protests forced Birmingham’s entrenched, racist police chief Bull Connor to resign. Public spaces like lunch counters and bus stations in Birmingham were ultimately desegregated.

The thing is, peaceful protest works. It can move mountains. It’s also essential, in a moment when the Trump administration will be alert to seize on anything even approaching violence to tamp down on protests that are getting underway and going national, to make sure that protests stay peaceful. In 2020, as Black Lives Matter protests spread across the country, Trump threatened he’d use the military to bring them under control. “We have the greatest country in the world,” the president declared. “We’re going to keep it safe.” He doesn’t need any excuses.

2020 BLM Protests in Schenectady, New York. Photo by Lori Van Buren/Albany Times Union via Getty Images

After peaceful protesters were tear-gassed to clear Lafayette Square in Washington, D.C., so Trump could have a political photo opportunity, appetite for these overreaches seemed to diminish, although the threats continued periodically. But memories dim, and here we are in 2025 with growing discontent towards a president who has raised taxes and cut jobs, all without any apparent benefit to the American people. Trump might try to take advantage of minor incidents, or even plants who engage in violence, to impose the Insurrection Act and use the military to put a halt to Americans who are out on the streets exercising their First Amendment rights.

Could Trump turn out the American military against protestors if something like that were to happen? Normally, the Posse Comitatus Act prohibits the use of the military for domestic law enforcement. It explicitly outlaws using the armed forces to enforce the law within our borders, unless that action is expressly authorized by the Constitution or an act of Congress. Enter the Insurrection Act, which permits a president to deploy the military in American cities and on our streets in very narrow circumstances involving insurrection, rebellion, or extreme civil unrest. In those circumstances, the military can only be used for “emergency needs” towards the goal of reestablishing civilian control as quickly as possible.

But, as the Brennan Center has explained, “The problem is that the Insurrection Act creates a giant loophole in the Posse Comitatus Act rather than a limited exception to it.” The Act was adopted in 1792, and it hasn’t been updated since 1874. Its language is broad and gives presidents plenty of discretion to, for instance, use the military to arrest American citizens engaged in protest, if a president calls what’s going on an insurrection, rebellion, or civil unrest. In an 1827 case, Martin v. Mott, the Supreme Court ruled that it is up to the president to decide whether the Insurrection Act should be invoked and that the courts may not review his decision. A president inclined to absorb power from a vacuum into his own hands has plenty to work with, as Trump has done, claiming we are being invaded by the Venezuelan Tren de Aragua gang to justify invoking the Alien Enemies Act and deporting people. So here we are.

Concerns about the Insurrection Act don’t mean that Americans should obey in advance, giving up their right to assemble and protest peacefully. But it does mean we need to understand the way the Trump administration could respond to organized protests as we head toward Saturday, April 5, when many Americans plan to participate in protests that are being organized locally but coordinated nationally. It helps us understand why peaceful protest, which is proven successful, is also essential.

In July of 2024, Kevin Roberts, president of the conservative Heritage Foundation and one of the chief architects of Project 2025, proudly announced on Steve Bannon’s podcast, “We are in the process of the second American Revolution, which will remain bloodless if the left allows it to be.” Donald Trump disclaimed all knowledge of Project 2025 shortly after reporting on that came to light. But we have learned since that Project 2025 was always the plan, and it’s being implemented now. We are forewarned.

George Orwell wrote 1984: “One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship.” We still have a Constitution, and we should each find the best way for us, personally, to ensure it stays that way. We have the obligation to find ways to speak up, even if we fear imposition of the Insurrection Act.

Be like Cory Booker. Be willing to stand up for what you believe in.

In our country, the military has long been prohibited from domestic law enforcement because of the fear that its involvement would put us on a path towards tyranny. They defended their vision of government against claims made by anti-federalists that the country was too big, that a president would become a dictator, and that a national army would crush any possibility of dissent.

In Federalist No. 10, James Madison defended the new Constitution against claims it would permit a president to become a dictator with a national army at his disposal to crush any possible dissent. He wrote that the system of government under consideration contained checks and balances to protect individual liberties. He argued that the legislative branch and the judicial branch would act as checks on the executive and there would be a balance of power shared between states and the federal government. Donald Trump, quite clearly, does not agree. He continues to try to give himself all the power of government, much as some of our early leaders feared a president might do.

It is up to each of us to decide how we will meet this moment. For some of us, that will mean showing up to Saturday’s “Hands Off” protest events. For others, it will mean continuing to confront elected officials with their obligation to face the challenges of this moment head-on. Others will be preparing to run for office, support a candidate, or educate their children about the importance of voting. Protest can take many forms. But what’s increasingly clear is that Trump’s effort to create a culture of fear has not silenced the opposition. Americans are, indeed, ready to save the Republic.

Reading Civil Discourse is a form of protest, too. Thank you for being here with me!

We’re in this together,

Joyce