statute

There are few laws President Trump name-checks more frequently than the Insurrection Act.

A 200-year-old constellation of statutes, the act grants emergency powers to thrust active-duty soldiers into civilian police duty, something otherwise barred by federal law.

Trump and his team have threatened to invoke it almost daily for weeks — most recently on Monday, after a reporter pressed the president about his escalating efforts to dispatch federalized troops to Democrat-led cities.

“Insurrection Act — yeah, I mean, I could do that,” Trump said. “Many presidents have.”

Roughly a third of U.S. presidents have called on the statutes at some point — but history also shows the law has been used only in moments of extraordinary crisis and political upheaval.

The Insurrection Act was Abraham Lincoln’s sword against secessionists and Dwight D. Eisenhower’s shield around the Little Rock Nine, the young Black students who were the first to desegregate schools in Arkansas.

Ulysses S. Grant invoked it more than half a dozen times to thwart statehouse coups, stem race massacres and smother the Ku Klux Klan in its South Carolina cradle.

But it has just as often been wielded to crush labor strikes and strangle protest movements. The last time it was invoked, Defense Secretary Pete Hegseth was in elementary school and most U.S. soldiers had not yet been born.

Now, many fear Trump could call on the law to quell opposition to his agenda.

“The Democrats were fools not to amend the Insurrection Act in 2021,” said Kevin Carroll, former senior counsel in the Department of Homeland Security during Trump’s first term. “It gives the president almost untrammeled power.”

It also precludes most judicial review.

“It can’t even be challenged,” Trump boasted Monday. “I don’t have to go there yet, because I’m winning on appeal.”

If that winning streak cools, as legal experts say it soon could, some fear the Insurrection Act would be the administration’s next move.

“The Insurrection Act is very broadly worded, but there is a history of even the executive branch interpreting it narrowly,” said John C. Dehn, an associate professor at Loyola University Chicago School of Law.

The president first floated using the Insurrection Act against protesters in the summer of 2020. But members of his Cabinet and military advisors blocked the move, as they did efforts to use the National Guard for immigration enforcement and the military to patrol the border.

“They have this real fixation on using the military domestically,” Carroll said. “It’s sinister.”

In his second term, Trump has instead relied on an obscure subsection of the U.S. code to surge federalized soldiers into blue cities, claiming it confers many of the same powers as the Insurrection Act.

Federal judges disagreed. Challenges to deployments in Los Angeles, Portland, Ore., and Chicago have since clogged the appellate courts, with three West Coast cases before the U.S. 9th Circuit Court of Appeals and one pending in the 7th Circuit, which has jurisdiction over Illinois.

The result is a growing knot of litigation that experts say will fall to the Supreme Court to unwind.

As of Wednesday, troops in Oregon and Illinois are activated but can’t be deployed. The Oregon case is further complicated by precedent from California, where federalized soldiers have patrolled the streets since June with the 9th Circuit’s blessing. That ruling is set to be reheard by the circuit on Oct. 22 and could be reversed.

Meanwhile, what California soldiers are legally allowed to do while they’re federalized is also under review, meaning even if Trump retains the authority to call up troops, he might not be able to use them.

Scholars are split over how the Supreme Court might rule on any of those issues.

“At this point, no court … has expressed any sympathy to these arguments, because they’re so weak,” said Harold Hongju Koh, a professor at Yale Law School.

Koh listed the high court’s most conservative members, Clarence Thomas and Samuel A. Alito Jr., as unlikely to push back against the president’s authority to invoke the Insurrection Act, but said even some of Trump’s appointees — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — might be skeptical, along with Chief Justice John G. Roberts Jr.

“I don’t think Thomas and Alito are going to stand up to Trump, but I’m not sure that Gorsuch, Kavanaugh, Barrett and Roberts can read this statute to give him [those] powers.”

The Insurrection Act sidesteps those fights almost entirely.

It “would change not only the legal state of play, but fundamentally change the facts we have on the ground, because what the military would be authorized to do would be so much broader,” said Christopher Mirasola, an assistant professor at the University of Houston Law Center.

Congress created the Insurrection Act as a fail-safe in response to armed mobs attacking their neighbors and organized militias seeking to overthrow elected officials. But experts caution that the military is not trained to keep law and order, and that the country has a strong tradition against domestic deployments dating to the Revolutionary War.

“The uniformed military leadership in general does not like getting involved in the domestic law enforcement issue at all,” Carroll said. “The only similarities between police and military is that they have uniforms and guns.”

Today, the commander in chief can invoke the law in response to a call for help from state leaders, as George H.W. Bush did to quell the 1992 Rodney King uprising in L.A.

The statute can also be used to make an end-run around elected officials who refuse to enforce the law, or mobs who make it impossible — something Eisenhower and John F. Kennedy Jr. did in defense of school integration.

Still, modern presidents have generally shied from using the Insurrection Act even in circumstances with strong legal justification. George W. Bush weighed invoking the law after Hurricane Katrina created chaos in New Orleans but ultimately declined over fears it would intensify the already bitter power struggle between the state and federal government.

“There are any number of Justice Department internal opinions where attorneys general like Robert Kennedy or Nicholas Katzenbach said, ‘We cannot invoke the Insurrection Act because the courts are open,’” Koh said.

Despite its extraordinary power, Koh and other experts said the law has guardrails that may make it more difficult for the president to invoke it in the face of naked bicyclists or protesters in inflatable frog suits, whom federal forces have faced down recently in Portland.

“There are still statutory requirements that have to be met,” said Dehn, the Loyola professor. “The problem the Trump administration would have in invoking [the law] is that very practically, they are able to arrest people who break the law and prosecute people who break the law.”

That may be why Trump and his administration have yet to invoke the act.

“It reminds me of the run-up to Jan. 6,” Carroll said. “It’s a similar feeling that people have, a sense that an illegal or immoral and unwise order is about to be given.”

He and others say an invocation of the Insurrection Act would shift widespread concern about military policing of American streets into existential territory.

“If there’s a bad faith invocation of the Insurrection Act to send federal troops to go beat up anti-ICE protesters, there should be a general strike in the United States,” Carroll said. “It’s a real break-the-glass moment.”

At that point, the best defense may come from the military.

“If a really unwise and immoral order comes out … 17-year generals need to say no,” Carroll said. “They have to have the guts to put their stars on the table.”

A federal judge on Thursday barred the Trump administration from deporting any Venezuelans from South Texas under an 18th-century wartime law and said President Trump’s invocation of it was “unlawful.”

U.S. District Court Judge Fernando Rodriguez Jr. is the first judge to rule that the Alien Enemies Act cannot be used against people who, the Republican administration claims, are gang members invading the United States.

“Neither the Court nor the parties question that the Executive Branch can direct the detention and removal of aliens who engage in criminal activity in the United States,” wrote Rodriguez, who was nominated by Trump in 2018. But, the judge said, “the President’s invocation of the AEA through the Proclamation exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute’s terms.”

In March, Trump issued a proclamation claiming that the Venezuelan gang Tren de Aragua was invading the U.S. He said he had special powers to deport immigrants, identified by his administration as gang members, without the usual court proceedings.

“The Court concludes that the President’s invocation of the AEA through the Proclamation exceeds the scope of the statute and, as a result, is unlawful,” Rodriguez wrote.

The Alien Enemies Act has been used only three times before in U.S. history, most recently during World War II, when it was cited to imprison Japanese Americans.

The proclamation triggered a flurry of litigation as the administration tried to ship migrants it claimed were gang members to a notorious prison in El Salvador.

Rodriguez’s ruling is significant because it is the first formal permanent injunction against the administration using the AEA and contends the president is misusing the law. “Congress never meant for this law to be used in this manner,” said Lee Gelernt, the ACLU lawyer who argued the case, in response to the ruling.

Rodriguez agreed, noting that the provision has been used only during the two World Wars and the War of 1812. Trump claimed Tren de Aragua was acting at the behest of the Venezuelan government, but Rodriguez found that the activities the administration accused it of did not amount to an invasion or “predatory incursion,” as the statute requires.

“The Proclamation makes no reference to and in no manner suggests that a threat exists of an organized, armed group of individuals entering the United States at the direction of Venezuela to conquer the country or assume control over a portion of the nation,” Rodriguez wrote. “Thus, the Proclamation’s language cannot be read as describing conduct that falls within the meaning of ‘invasion’ for purposes of the AEA.”

If the administration appeals, it would go first to the New Orleans-based 5th U.S. Circuit Court of Appeals. That is among the nation’s most conservative appeals courts and it also has ruled against what it saw as overreach on immigration matters by both the Obama and Biden administrations. In those cases, Democratic administrations had sought to make it easier for immigrants to remain in the U.S.

The administration, as it has in other cases challenging its expansive view of presidential power, could turn to appellate courts, including the U.S. Supreme Court, in the form of an emergency motion for a stay pending an appeal.

The Supreme Court already has weighed in once on the issue of deportations under the AEA. The justices held that migrants alleged to be gang members must be given “reasonable time” to contest their removal from the country. The court has not specified the length of time.

It’s possible that the losing side in the 5th Circuit would file an emergency appeal with the justices that also would ask them to short-circuit lower court action in favor of a definitive ruling from the nation’s highest court. Such a decision likely would be months away, at least.

The Texas case is just one piece of a tangle of litigation sparked by Trump’s proclamation.

The ACLU initially filed suit in the nation’s capital to block deportations. U.S. District Judge James E. Boasberg issued a temporary hold on removals and ordered the administration turn around planes that had left with detainees headed to El Salvador, a directive that was apparently ignored. Later, the Supreme Court weighed in.

The justices stepped in again late last month with an unusual postmidnight order halting deportations from North Texas, where the ACLU contended the administration was preparing for another round of flights to El Salvador.

Riccardi writes for the Associated Press. AP writers Lindsay Whitehurst and Mark Sherman contributed to this report.

WASHINGTON — A federal judge Friday temporarily blocked the Trump administration from implementing an executive order that a labor union says would cancel collective bargaining rights for hundreds of thousands of federal employees.

U.S. District Judge Paul Friedman ruled that a key part of President Trump’s March 27 order can’t be enforced at roughly three dozen agencies and departments where employees are represented by the National Treasury Employees Union, or NTEU.

The union, which represents nearly 160,000 federal government workers, sued to challenge Trump’s order. The union said it would lose more than half its revenue and over two-thirds of its membership if the judge denied its request for a preliminary injunction.

Friedman said he would issue an opinion in several days to explain his two-page order. The ruling isn’t the final word in the lawsuit. He gave the attorneys until May 2 to submit a proposal for how the case should proceed.

Union President Doreen Greenwald said the judge’s order is “a victory for federal employees, their union rights and the American people they serve.”

“The preliminary injunction granted at NTEU’s request means the collective bargaining rights of federal employees will remain intact and the administration’s unlawful agenda to silence the voices of federal employees and dismantle unions is blocked,” Greenwald said in a statement.

Some agencies, including the FBI, are exempt from a law requiring federal agencies to bargain with labor organizations over employment matters. Presidents can apply the exemption to agencies that have a “primary function” of performing intelligence, counterintelligence, investigative or national security work.

But no president before Trump tried to use the national security exemption to exclude an entire Cabinet-level agency from the law’s requirements, according to the employees’ union. It said Trump’s order is designed to facilitate mass firings and exact “political vengeance” against federal unions opposed to his agenda.

“The President’s use of the Statute’s narrow national security exemption to undo the bulk of the Statute’s coverage is plainly at odds with Congress’s expressed intent,” union attorneys wrote.

Government lawyers argued that the court order requested by the union would interfere with the president’s duty to ensure federal workers are prepared to help protect national security.

“It is vital that agencies with a primary purpose of national security are responsive and accountable to the American people,” Justice Department attorneys wrote.

The Internal Revenue Service is the largest bargaining unit represented by the National Treasury Employees Union. A day after Trump signed his order, the administration sued a union chapter in Kentucky to seek a ruling that it can terminate the collective bargaining agreement for the IRS.

The union says the administration has “effectively conceded” that its members don’t do national security work. The union members affected by the executive order also include employees of the Health and Human Services Department, the Energy Department, the Environmental Protection Agency and the Federal Communications Commission.

The union said it would lose approximately $25 million in revenue from dues over the next year. Some agencies, it says, already have stopped deducting union dues from employees’ pay.

“In the absence of preliminary injunctive relief, NTEU may no longer be able to exist in a manner that is meaningful to the federal workers for whom it fights,” union lawyers wrote.

Government attorneys argued that the courts typically defer to the president’s judgment on national security matters.

“Executive actions that are facially valid — that is, within the lawful authority of the executive — are entitled to a presumption of regularity,” they wrote.

Kunzelman writes for the Associated Press.