President Donald Trump may invoke the Insurrection Act, a centuries-old law which would enable him to use the military for his mass disappearances and to suppress protest in a huge abuse of presidential power.
On January 20, 2025, President Trump issued an executive order declaring a national emergency at the U.S. southern border. Part of the order required the Secretaries of Defense and Homeland Security to report within 90 days if more actions “may be necessary to obtain complete operational control of the southern border, including whether to invoke the Insurrection Act of 1807.”
The Insurrection Act allows the president to deploy the military to conduct civilian law enforcement activities if the president determines that certain criteria have been met.
According to reports, Defense Secretary Pete Hegseth and Homeland Security Secretary Kristi Noem recommended against invoking the Insurrection Act on the grounds that low border crossings removed the need for more personnel to stem the flow of migrants. Admittedly, the dip in numbers is a due to bars on asylum and U.S.-pushed anti-immigrant policies across the Americas.
Still, the Insurrection Act recommendation could change. With both President Trump and conservative commentators discussing using this law to assist in conducting horrific family and community separation, it is important to understand this law and why its invocation to attack necessary migration and peaceful protest would be an abuse of presidential power.
What is the Insurrection Act?
The Insurrection Act is an exception to the general prohibition on the military’s involvement in civilian law enforcement. It permits the president to deploy the military and federalized national guard to enforce federal law or suppress a rebellion if the president determines that “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States” make it “impracticable” to enforce federal law through ordinary judicial proceedings.
How has the Insurrection Act been used in the past?
The Insurrection Act has been used 30 times. Most recently, it was invoked in 1992 in response to the civil unrest that erupted following the acquittal of white police officers charged with the beating of black motorist Rodney King.
The act has generally been used for suppressing rebellions (e.g., the Civil War); suppressing labor movements or breaking strikes; protecting civil rights (e.g., protecting African-Americans during Reconstruction and the Civil Rights Movement); and quelling civil unrest (e.g., violent uprisings in the late 1960s).
The Insurrection Act has never been used for immigration enforcement or border security.
How could the Trump Administration seek to invoke the Insurrection Act?
A policy brief by former Trump administration lawyers frames migration as an “invasion” that is overwhelming law enforcement. They argue that migrants seeking to cross the border fulfill the prerequisites for invoking the Insurrection Act. It’s a violent misinterpretation of a humanitarian challenge.
President Trump’s January 20 Executive Order echoes this “invasion” concept, saying his declaration of a national emergency was “[t]o protect the security and safety of United States citizens [and] to protect each of the States against invasion.”
As legal scholar William Banks discusses, labeling migration as an invasion is against the founders’ intentions. Banks notes that in the text and historical background of the Constitution, the term “invasion” was understood to denote “intrusions by use of military force” and “hostile incursions by a foreign power, not border crossings by migrants.”
Any invocation of the Insurrection Act to deploy the military or federalized national guard to the border or for other migration-related purposes would be an abuse of power. It would undoubtedly be a moral relapse.
What should Congress do?
Members of Congress must make clear to the administration that any use of the Insurrection Act to target migrants would be unacceptable. Congress should also amend the Insurrection Act to clarify when it can be used and to make sure that decisions to invoke it are subject to judicial review. This would help prevent the law’s abuse and ensure that the courts can adequately serve as a check on presidential power.
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As a Quaker organization, FCNL believes God cherishes all of humanity. We seek migration policies that uphold the calling to love thy neighbor: no exceptions (Matthew 22:37-39). We oppose war-like techniques in our communities and at our borders to intimidate and police individuals, many of whom are escaping violent state actors. The use of U.S. military personnel has no place in a civil law immigration system or in managing protests.
Rather than seeking to misuse centuries-old laws to carry out immoral and unnecessary cruelty, the United States should invest in humane, sustainable migration practices that reflect our shared values of justice, liberty, and prosperity for all.
