U.S. President Donald Trump’s decision to deploy U.S. Marines and National Guard troops to Los Angeles against the will of local officials has prompted new fears of how far he is willing to go in exercising executive power.
California Gov. Gavin Newsom accused Trump of behaving like a dictator and said on X, “This is an unmistakable step toward authoritarianism.”
The president’s justification for his actions under Title 10 of the U.S. Code is currently being challenged in the courts. But he has also floated the use of an even more formidable tool at his disposal: the Insurrection Act. The law gives the president even broader authority to use federal troops for domestic policing based on claims that there is an insurrection, invasion, or domestic disorder that states can’t handle themselves. This rare presidential power for suppressing rebellion could be a dangerous tool in the hands of an unrestrained executive such as Trump.
If elected officials ever intend to rein in the imperial presidency, they should start here. Though it is unlikely that the Republican-controlled Congress will undermine Trump in the short term, reforming the Insurrection Act should be a central goal for Democrats and any potential Republican allies if a window of opportunity emerges in the coming years.
Congress passed the Insurrection Act in 1807 to expand President Thomas Jefferson’s executive powers as Aaron Burr plotted to raise an army and create a separate republic of western U.S. territories. But what experts refer to as the Insurrection Act is actually, as the Brennan Center for Justice notes, “an amalgamation of different statutes enacted by Congress between 1792 and 1871” that are codified today in Sections 251 through 255 in Title 10 of the U.S. Code.
During Reconstruction, Southern Democrats pushed back against the Insurrection Act, which had been central for enforcing policies that empowered freed slaves. Following the Compromise of 1877, in which Republican Rutherford B. Hayes was declared the victor of a contested presidential election only after his party functionally agreed to dismantle Reconstruction, Democrats in Congress passed the Posse Comitatus Act of 1878, which generally barred federal military forces from participating in domestic law enforcement.
No longer connected to its roots in Reconstruction politics, the Posse Comitatus Act remains the most important barrier to presidents using military force at home. Yet the Insurrection Act still offers presidents a way to avert this barrier in cases of invasion, rebellion, and domestic unrest. In 1871, Congress added a provision to protect against groups depriving individuals of their civil rights.
In the 18th and 19th centuries, presidents turned to the power of the Insurrection Act primarily to stop domestic rebellions. For instance, President George Washington used the Militia Acts of 1792—the historical foundation for the Insurrection Act—to put down the Whiskey Rebellion in 1794. In 1861, President Abraham Lincoln invoked the Insurrection Act in response to the secession of several Southern states at the outbreak of the Civil War.
In the decades that followed, the power was applied more broadly—for better and for worse.
In the 1950s and 1960s, several presidents invoked the Insurrection Act to enforce civil rights in Southern states. In 1957, when Arkansas Gov. Orval Faubus refused to follow court-ordered school desegregation at Little Rock’s Central High School, President Dwight D. Eisenhower reluctantly sent in federal troops to protect the enrolling Black students. In 1962, President John F. Kennedy sent troops into Oxford, Mississippi, when violent white mobs, with the support of Gov. Ross Barnett, attempted to block James Meredith from enrolling as the first Black student at the University of Mississippi. In 1965, President Lyndon B. Johnson federalized the National Guard in Alabama after state police and white mobs brutally attacked peaceful civil rights protesters.
Presidents have also turned to this power to restore order in cities suffering from unrest. In 1967, for instance, Johnson worked with Michigan Gov. George Romney to calm Detroit following protests against systemic oppression and police violence against Black Americans. In 1992—the most recent invocation of the Insurrection Act—President George H.W. Bush did the same, with the consent of California’s governor, after unrest devastated Los Angeles following the acquittal of the police who beat Black motorist Rodney King.
However, the Insurrection Act has also been used for more nefarious purposes. Two presidents infamously used this power to suppress workers striking against poor labor conditions. In 1894, President Grover Cleveland used the act as the basis for sending in Army troops to break up the widespread Pullman Strike of railroad workers. In 1914, President Woodrow Wilson sent in troops to intervene in a violent conflict involving striking coal miners, company-hired private security guards, and the Colorado National Guard.
The Insurrection Act has been used sparingly throughout American history, as leaders have been reluctant to ignore states’ authority. Even during the Civil Rights Movement, activists criticized presidents for hesitating too much before sending troops to address the white terrorism taking hold throughout the Deep South. It took extraordinary conditions for any president, Democrat or Republican, to pull this specific trigger. As Kennedy explained when he sent troops into Mississippi in September 1962, “I deeply regret the fact that any action by the executive branch was necessary in this case, but all other avenues and alternatives, including persuasion and conciliation, had been tried and exhausted.”
Trump’s presidency has made clear how much the Insurrection Act’s power depends on being in the hands of a leader who respects guardrails and acts with restraint.
Congress should pursue reform of the legislation, leaving presidents with the power to act under extreme circumstances but imposing much stricter limits.
The first of these reforms must be definitional. As written, the Insurrection Act is extraordinarily vague about what kinds of problems would justify presidential military intervention. Congress must provide much greater clarity and specificity about the terms “insurrection,” “rebellion,” and “domestic violence.”
The second reform aim should be to revitalize the balance of power between branches of government. Reforms could include requiring a president to send a report to Congress about the domestic use of troops within 24 to 48 hours of their deployment. Moreover, reform could limit a president’s ability to deploy troops for a limited time without congressional authorization. There have also been proposals to allow for judicial review of these decisions.
Finally, there should be stricter oversight of and more transparency into the president’s decision-making process when this action is taken. Too many of these decisions remain hidden from public view, making it difficult for the public or legislators to understand why they are made.
After Trump threatened to invoke the Insurrection Act numerous times in 2020, the Jan. 6 committee encouraged legislators to consider reforms. Now that Trump has returned to power and is considering using it once again, such changes will have to wait until there is a new occupant of the White House and a new balance on Capitol Hill. But reform is a long-term game, and lawmakers should have concrete proposals in place for when a window of opportunity emerges.
Presidential power is dangerous, even though it is also an essential part of what makes the U.S. government work. While it is unrealistic to imagine a president ever weakening his or her power, it is not unprecedented. After President Richard Nixon’s Watergate scandal and subsequent exit from office, Congress reformed the executive’s war powers, the budget process, and oversight of federal intelligence operations to restore checks and balances.
If Congress can act, then the next time there is a president who lacks the internal norms necessary for restraint, there will be procedural and legal guardrails in place to help limit how federal troops can be used on the home front. Otherwise, this outdated law could become yet another license for domestic authoritarianism.
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