Trump threatens to use Insurrection Act. What is it?

PORTLAND, Ore. (KOIN) — Even as a federal judge twice blocked President Trump’s efforts to deploy hundreds of National Guard troops to Portland, the White House is eyeing one of the most explosive tools in presidential power — the Insurrection Act.

During a press conference in the Oval Office, Trump said he would invoke the Insurrection Act “if

it was necessary.”

“So far, it hasn’t been necessary. But we have an Insurrection Act for a reason,” Trump said. “If I had to enact it, I’d do that. If people were being killed, and courts were holding us up or governors or mayors were holding us up, sure, I’d do that.”

He also said, “Portland is on fire. Portland has been on fire for years. I think it’s all criminal insurrection.”

Portland is not on fire. And as Gov. Tina Kotek made clear, “There’s no insurrection in Portland. There’s no threat to national security.”

What is the Insurrection Act?

The Insurrection Act of 1807 lets the President of the United States deploy federal troops — including National Guard units — under certain, specific conditions.

Those include a state governor or state legislature requesting help, when a state fails to protect constitutional rights or when federal laws are blocked by rebellion or unrest.

The Insurrection Act states, in part: “Whenever the President considers that unlawful obstructions … make it impracticable to enforce the laws … he may call into federal service such of the militia and armed forces as he considers necessary.”

Read: The 30 times the Insurrection Act has been invoked in US history

President Dwight Eisenhower used it to enforce school desegregation in Little Rock, Arkansas in 1957. President George HW Bush last invoked it during the 1992 Los Angeles riots after the Rodney King verdict.

The situation in Portland is far different from President John F. Kennedy’s move to federalize the Alabama National Guard in 1963 to integrate the University of Alabama in a standoff with Gov. George Wallace. That is because Trump is ostensibly seeking to use troops to protect federal property and personnel, not to enforce federal civil rights laws passed by Congress, William Banks, a Syracuse University law professor and an expert in constitutional law and national security, told the Associated Press.

The Guard members cannot enforce local laws, block traffic or do “any of the things that police do,” Banks said. “So it’s more symbolic than helpful.”

Critics warn using the Insurrection Act blurs the line between military and police roles and raises serious civil liberties concerns.

While President Trump has so far relied on Title 10 — a narrower law that could let him federalize National Guard troops — the legal pushback signals even fiercer resistance if he tries to invoke the full Insurrection Act.

Legal experts say the Insurrection Act requires clear proof of rebellion or lawlessness. Without it, using troops risks violating federal law. Courts could step in if the threat is not clearly demonstrated.

“I think if we’re looking broadly at this,” said CBS News Legal Analyst Jessica Levinson, “we’re talking about battles between the federal government and the states.”

The January 6 attack

The storming of the United States Capitol on January 6, 2021, by a mob of supporters of then-President Donald Trump disrupted a joint session of Congress convened to certify the results of the presidential election of 2020, which Trump had lost to his Democratic opponent, Joe Biden, the Encyclopedia Brittanica states.

“Because its object was to prevent a legitimate president-elect from assuming office, the attack was widely regarded as an insurrection or attempted coup d’état. The FBI and other law-enforcement agencies also considered it an act of domestic terrorism. For having given a speech in which he rallied supporters to storm the Capitol in a violent attack that threatened the certification of Biden’s victory, Trump was impeached by the Democratic-led House of Representatives for ‘incitement of insurrection’ (he was subsequently acquitted by the Senate).”

The Insurrection Act was not invoked during the January 6 riots. The National Guard was called to help after a call from the District of Columbia to the Army. It was then-President Trump’s decision not to call in the National Guard nor to invoke the Insurrection Act.

When Trump returned to office he pardoned more than 1,500 people convicted or charged in connection with the US Capitol riot, including 14 members of the far-right groups Proud Boys and Oath Keepers. Trump also ordered the Department of Justice to drop all pending cases against suspects in the January 6 riots.

The Associated Press contributed to this report.