How the Insurrectionist Might Use the Insurrection Act to Go After Non-insurrectionists

Opening Arguments

OA1123 - Insurrection enthusiast Donald Trump sure seems to be looking for an excuse to invoke the Insurrection Act of 1807 in a little-noticed section of one of his flurry of Inauguration Day executive orders. We review the history of how the Constitution and subsequent acts of Congress were written specifically to keep the President from deploying troops on US soil without a very good reason, and how and why the Act has been invoked 30 times in US history. When does civil disorder become an “insurrection” and when, if ever, can the President send in troops that a state hasn’t requested? And why is Trump so determined to declare an insurrection on the border?

• 10 USC 251-255 (colloquially known as “The Insurrection Act”)

• “The President’s Authority to Commit Troops Domestically Under the Insurrection Act,” Harold Hongju Koh & Michael Loughlin, American Constitution Society (September 2020)

• “Policy Brief: The U.S. Military May Be Used to Secure the Border,” Ken Cuccinelli & Adam Turner (3/24/24)

• Insurrection Act of 2024 (IA updates proposed by Democrats)

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