Trump’s Tough Talk On The Insurrection Act Is Less Than It Appears

And it’s all about domination, not order

Editorial credit: Joey Sussman / Shutterstock.com

As his military incursions into American cities spark public outrage and courtroom defeats, Donald Trump has begun brandishing an even darker weapon—the Insurrection Act.

Over the past week, Trump has repeatedly suggested he might invoke it to “restore order” in Democratic-led cities like Chicago and Portland—places he claims have been “invaded” by criminals and immigrants. “If the governors and mayors won’t do their jobs,” he told a rally crowd in Michigan on Monday, “then I will. I’ll send in the troops. We’ll clean it up in a day.” Earlier this summer, he mused to reporters that “maybe the Insurrection Act is what it takes when cities are out of control and won’t cooperate.”

It’s the kind of authoritarian chest-thumping that thrills his base and horrifies anyone concerned whether constitutional government will withstand his assaults. But when you look past the bluster, Trump’s threat is less formidable than he would like it to appear—legally tenuous, politically explosive, and very possibly a bluff.

Trump’s posture is that these “Democratic cities” are rogue entities—unwilling to cooperate with his federal initiatives, soft on crime, and infested with migrants. That’s his pretext for “taking matters into his own hands” by sending troops into American streets—and it’s clearly an improper invocation of an act designed to deal with the gravest crises to civic order, as opposed to a tool for partisan score-settling.

Moreover, invoking the Insurrection Act isn’t nearly as simple as Trump makes it sound. To begin with, it suffers from the same core defect—only worse—as his other go-to statute, 10 U.S.C. § 12406, which governs federalization of the National Guard in cases of “rebellion or invasion.” The key difference is that the Insurrection Act requires an actual insurrection—a threshold even higher than § 12406’s “rebellion” standard. Courts vary in their formulations, but an insurrection is essentially “a violent, organized uprising against lawful authority, aimed at overthrowing or obstructing it.”

Here lies the first problem: just as there are no rebellions in the cities Trump claims to “liberate” under § 12406, there are no insurrections in Chicago, Portland, or anywhere else. It is fanciful to contend that anti-ICE protesters, even the occasional ones who act out improperly, are dedicated to overthrowing the United States. And Trump’s own rhetoric makes clear that’s not remotely his motivation. He wants to address a fictional “crime wave”—a double lie that distorts both the law and the facts.

A Ridiculous Attorney General

Should he actually invoke the Act, Trump would force the DOJ to walk into federal court and allege that what’s happening in those cities amounts to an insurrection. That would be a falsehood even more “untethered to the facts”—to borrow the Portland judge’s phrase rejecting the administration’s prior invocation of § 12406—than any claim he has ventured so far.

If courts were to swallow that lie, they would effectively be saying there are no limits left on presidential power to deploy the military domestically. In that event, we are lost anyway: Trump would hold vast emergency authority, including, most ominously, potential license to disrupt the midterms.

There are signs the courts won’t let themselves be used in this way. Judges in Portland and San Francisco have already blocked or curtailed deployments under § 12406, finding the administration had failed to demonstrate any factual predicate for rebellion. (A Ninth Circuit panel later lifted the order from the San Francisco court in part.) The same reasoning would apply—with even greater force—to an “insurrection” claim.

Pushing back on Trump’s whoppers would mark a departure from the 30 or so times in our history when the Act has been invoked, typically at the request of state and local officials. (Here, those same officials want no part of what they view as political theater manufacturing the very crisis Trump claims to confront.) Courts often have deferred to presidential determinations of insurrection—but they weren’t confronting claims so transparently false.

Even if Trump cleared the legal hurdle, invoking the Act wouldn’t change much on the ground. It authorizes the use of federal troops for domestic law enforcement—to arrest civilians, disperse protests, and “restore order.” That’s deeply troubling, particularly since military personnel lack training for the nuanced challenges of civilian policing. Judging from the flood of footage coming out of Chicago and elsewhere, federalized troops already appear to be acting as de facto law enforcement despite the supposed limits of § 12406. Guard members are supposed to protect federal personnel and property—but, as Chicago’s complaint documents in detail, they have repeatedly crossed the line between “support” and “enforcement.”

City officials report that troops are detaining people without clear authority, operating under opaque chains of command, wearing no identifying insignia, and using excessive force in violation of the Fourth Amendment. Those abuses—technically illegal even under § 12406—would explode under a full-fledged Insurrection Act invocation. It would be carte blanche for the president to use the military as his domestic police force.

So why hasn’t he done it? Not out of prudence or restraint. When has Donald Trump ever forborne the maximum show of force he can get away with? He’s tried to ban whole religions, fired career prosecutors on live TV, and ordered a military strike by tweet.

The Insurrection Act, however, is political kryptonite. Everyone knows what it entails: boots on the ground, soldiers in American streets. It conjures images of Reconstruction, the riots of the 1960s, even Tiananmen Square—not “law and order” but troops roughing up citizens. Even many of Trump’s allies in Congress would blanch at the sight of uniformed soldiers cracking down on civilians in Democratic strongholds. § 12406, by contrast, sounds bureaucratic and benign—its “support functions” obscure enough to seem harmless. You can imagine a mid-level Pentagon colonel assuring reporters it’s “just logistical coordination.” But the Insurrection Act carries a moral and political charge no amount of spin can blunt.

If Trump were to cross that line—if Americans woke up to footage of federal troops marching down Michigan Avenue—it would be clear even to casual observers that he was making war on the country’s own cities. The backlash would be ferocious. Trump’s already low approval ratings could crater irretrievably.

And yet, presidential bluffs have consequences. Each time Trump threatens to invoke the Insurrection Act, he normalizes the idea that the military is a domestic political instrument. The more he repeats the threat, the more it becomes part of the vocabulary of executive power. If he ever followed through—if tanks rolled down an American street, if a soldier in fatigues clubbed a protester or bystander—the image would reverberate far beyond a single news cycle. It would be a defining moment, one that lays bare the authoritarian impulse animating Trump’s rhetoric.

So what about impeachment?

The sight of a uniformed soldier beating an unarmed citizen is the kind of tableau that burns itself into a nation’s conscience. It would be remembered, as Kent State was remembered, as a stain on the Republic.

So yes, Trump’s saber-rattling about the Insurrection Act is dangerous—but less because it’s likely to succeed than because it drags the country one step closer to accepting the unimaginable as routine. For all his preening about “strength,” Trump’s greatest weapon has always been his capacity to erode the boundaries of the permissible—to make the outrageous sound inevitable. The Insurrection Act is merely his latest boundary-breaking instrument.

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In a grim irony, the real insurrection Trump should worry about is the one that bears his name—the attempt to overturn an election by force on January 6. That’s the only genuine insurrection this country has seen in generations. And it wasn’t in Chicago or Portland. It was in Washington, D.C.—led by a president who now threatens to use the very law meant to suppress rebellion as a shield for his own lawlessness.

Trump may posture as the man ready to restore order, but what he’s really advertising is his contempt for the rule of law itself. The Insurrection Act may look like a weapon of control. In Trump’s hands, it’s also a mirror—reflecting the chaos he has unleashed and the authoritarian instincts he can’t resist indulging.

Talk to you later.