WASHINGTON — White House officials have held increasingly serious discussions in recent days about President Donald Trump invoking the Insurrection Act, a rarely used 19th century law that gives the president the power to deploy active-duty troops inside the U.S. for law enforcement purposes, five people with knowledge of the talks told NBC News.
The discussions come as Trump has sought to deploy National Guard troops in several major cities — including Los Angeles, Chicago and Portland, Oregon — saying they’re needed to reduce crime and protect Immigration and Customs Enforcement officials from protesters. Critics have said that the Trump administration is exaggerating issues in those cities.
A decision to invoke the act is not expected to be imminent, one senior administration official said. Were it to happen, it would be a notable escalation. The guard is currently deployed in limited support roles since active-duty members of the military are forbidden from conducting civilian law enforcement actions, such as conducting searches and making arrests. But the Insurrection Act allows the president to deploy troops inside the U.S. for that purpose.
Trump’s plans to deploy the National Guard have occasionally hit legal hurdles. A federal judge in Oregon on Sunday blocked the president from sending guard members from any state to Portland. The next day, Trump said publicly that he would invoke the Insurrection Act “if it was necessary.”
“If people were being killed, and courts were holding us up, or governors or mayors were holding us up, sure, I’d do that,” Trump said. As of now, he said, it hasn’t been needed.
Talk inside the White House about invoking the act has ebbed and flowed since Trump took office again in January, said the five people, who include the senior administration official, two people familiar with the discussions and two people close to the White House.
But the debate inside the administration has shifted recently, from whether it makes sense to invoke the act to more deeply exploring how and when it might be invoked, both people close to the White House said.
Administration officials have drafted legal defenses and various options for invoking the act, two of the people said.
But the current, broad consensus among the president’s aides has been to exhaust all other options before taking that step, the senior administration official and one of the people close to the White House said.
The person close to the White House described the process as working its way up “an escalatory ladder.”
Asked about discussions regarding invoking the Insurrection Act, White House spokesperson Abigail Jackson said in a statement: “The Trump administration is committed to restoring law and order in American cities that are plagued by violence due to Democrat mismanagement. And President Trump will not stand by while violent rioters attack federal law enforcement officers. The administration will work to protect federal assets and officers while making American cities safe again.”
The act gives the president broad discretion regarding its invocation. It can be invoked at the request of a state or when the president determines that conditions like “unlawful obstructions,” “rebellion” or “insurrection” have made it difficult to enforce the law. During the Civil Rights era, three presidents — Dwight D. Eisenhower, John F. Kennedy and Lyndon B. Johnson — used the act to protect activists or enforce court orders mandating desegregation. It was last used, at the request of California’s governor, during the 1992 Los Angeles riots.
The governors of Oregon and Illinois both oppose the sending of troops to their states. There are no riots, and authorities there are not defying court orders.
The White House expects that any potential invocation of the act would be met with swift legal challenges and ultimately land at the Supreme Court.
Last month, a federal judge ruled that the White House’s deployment of active-duty troops to Los Angeles in June was illegal under the Posse Comitatus Act, a 19th century law that prevents the military from being used as police. After that decision, administration officials revived discussions and internal legal analyses around invoking the Insurrection Act, according to two of the people familiar with the discussions and one person close to the White House.
But Trump was cautioned that doing so under current circumstances might not hold up in the Supreme Court, which would break his series of victories there, these people said, and the idea was tabled for a time.
A White House official declined to discuss specific deliberations but said the president’s legal team is focused on charting a legal pathway that can withstand judicial scrutiny.
“Ultimately it’s the president’s vision and the president’s policies that he got elected to implement that the attorneys are just working hard to defend,” the White House official said. “We’re working hard to look at the law and say, ‘How do we achieve the president’s vision?’”
Trump considered invoking the act in his first term during the protests after George Floyd’s killing in 2020. He declined despite the urging of some allies and later regretted that decision, according to the senior administration official. He is viewing his current decision through that lens, the senior administration official said.
One of Trump’s deputy chiefs of staff, Stephen Miller, has been a leading and longtime proponent of invoking the Insurrection Act. Miller has been at the center of discussions on the issue since Trump took office, said the five sources plus another person familiar with the discussions.
Administration officials have discussed invoking the act if local law enforcement cannot or will not protect ICE and federal law enforcement agents, one of the people familiar with the discussions said.
But one concern that some officials have raised is that invoking the act could eventually lead to pitting active-duty U.S. troops against other Americans, this person said.
Trump has stepped up his use of the word “insurrection” to describe developments in Portland and Chicago in recent days. On Monday he said the pushback on ICE agents’ attempts to carry out immigration enforcement operations in both cities is “criminal insurrection.”
Trump and Miller have described the protesters against ICE operations in Chicago and Portland as participating in organized violence against the federal government.
“They’re saying they’re going to carry out insurrection against the federal government by using force, obstructive force, to keep ICE officers from going out and conducting arrests,” Miller told reporters on Monday. “This is an all-out campaign of insurrection against the sovereignty of the United States because the Democrat Party and those who are committing violence in this country do not believe in legitimacy of the sovereign territory of the United States.”
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