Will Trump Invoke the Insurrection Act of 1807 Next?

IF YOU’VE BEEN FOLLOWING THIS NEWSLETTER, you already know that Trump is fixated on carrying out mass deportations, no matter what the law says—even as the economy falters and the stock market plunges following his imposition of tariffs on dozens of our trading partners, both real and imagined.

But it is my job to tell you that things could, technically, get stupider before they get better.

That’s because tucked away in section 6B of Trump’s day-one executive order declaring a national emergency at the southern border was this pearl, which I’ve set in bold and italics so you can’t miss it:

Within 90 days of the date of this proclamation, the Secretary of Defense and the Secretary of Homeland Security shall submit a joint report to the President about the conditions at the southern border of the United States and any recommendations regarding additional actions that may be necessary to obtain complete operational control of the southern border, including whether to invoke the Insurrection Act of 1807.

Since we can assume the report from the secretaries will reflect Trump’s preferences, by the end of this month we’ll have a clear signal of the likelihood of his invoking the Insurrection Act—a previously unfathomable step that would dramatically escalate the administration’s already deeply controversial detention and deportation efforts.

The Insurrection Act of 1807, which allows the president to deploy U.S. armed forces and the national guard against Americans in situations of civil unrest, was last invoked in 1992 to put down the Rodney King riots after the four white police officers who were filmed beating King were acquitted. The nonpartisan Brennan Center has called the law “dangerously overbroad and ripe for abuse.”

So yes, it may seem insane for Trump to invoke the act. But why would that stop him from doing it?

“I think he’s gone completely beyond the pale and beyond any regular constraints on actions, so I could definitely see him doing that,” Kerri Talbot, the executive director of the Immigration Hub advocacy group told The Bulwark. “I think the American people and Congress, too, are starting to realize he’s not paying attention to the usual constraints of the law and are starting to get concerned that it’s going too far.”

While the prospect of invoking the Insurrection Act is outlandish, Trump wouldn’t be taking this action in a vacuum. We have already seen that Trump’s mass deportation dragnet has entangled refugees who are in the country legally, green card holders, and even Puerto Rican and Latino U.S. citizens. As a reminder, the executive order declaring a national emergency at the southern border framed what is happening there as an “invasion” that threatens “America’s sovereignty” as part of its justification for Trump’s decrees.

“This whole strategy from Trump is really based on the demonization of immigrants and the idea we’re being invaded as justification of all executive orders that are trampling on our civil rights and freedoms,” Vanessa Cárdenas, the executive director of immigrant rights group America’s Voice, told The Bulwark. “They’ve been demonizing immigrants for a long time to psychologically prepare people for these actions, and we need to reject and denounce it.”

The White House did not respond to a request for comment on whether Trump will invoke the Insurrection Act before April ends.

Trump has never pretended to be everyone’s president, as other presidents have claimed to be. He treats Americans in blue states differently, and he often shows that he has it out for cities led by Democrats. He has attacked and pledged to defund so-called sanctuary cities, which don’t work as closely with federal immigration agents as he would like. One of the cities that has consistently drawn his ire is Chicago, which his border czar Tom Homan criticized for the city’s population being too “educated” because of the “Know Your Rights” trainings provided to likely targets for ICE operations.

Is it inconceivable Trump could invoke the Insurrection Act in a city like Chicago, forcing U.S. citizens and legal residents into unnecessary confrontations with U.S. military forces?

Cárdenas said it isn’t inconceivable. One reason Trump’s actions have always been incredibly troubling is that even during his first term, every time he has sought to ramp up deportations, U.S. citizens have been affected, she explained.

“He’s expanding the definition of criminality to fit his goals and showing that people are not safe, regardless of their status. It’s almost psychological warfare, sending a message that you’re not safe—whether you’re a citizen or permanent resident, you’re in danger,” Cardenas added. “People need to understand how vicious and coordinated this attack is.”

Charles Kuck, an Atlanta-based immigration lawyer, said that Trump’s potential invocation of the Insurrection Act would not pass muster in the courts because he would be arguing two things at cross purposes.

“I don’t know how you can say the border is closed and safer than ever and then say there’s an insurrection that needs to be put down,” Kuck said. “They’re starting to get pushback from their own voters over the crazy stuff they’re doing, so that might be a step too far.”

Kuck makes a good point. But it’s worth remembering that we heard chatter about the Insurrection Act being invoked after Trump lost in 2020. Here’s how the Washington Post described it on December 24, 2020:

The Insurrection Act allows the president to call in troops for domestic law enforcement, not unlike what he did this summer in Portland, Ore., during Black Lives Matter protests. It’s supposed to be used only in times of emergency.

But what emergency is there right now that would warrant the military taking to the streets? There is none. Trump could try to gin one up by encouraging protests across the nation on Jan. 6 as Congress certifies results. . . .

To that end, Trump allies are planning a rally in Washington that day. Trump is encouraging them: “Big protest in D.C. on January 6th. Be there, will be wild!” he tweeted last week.

Trump may not have been crazy enough to invoke the Insurrection Act then. But he clearly has thought about its use before, and in a variety of contexts. And he has already shown he’s more than happy to dust off 200-year-old laws for his twisted uses, as he did with the Alien Enemies Act of 1798, to disappear Venezuelan men, including an innocent Maryland father with U.S. citizen family, to an El Salvador hellhole.

One Last Thing

A new report by World Relief, the National Association of Evangelicals, the Center for the Study of Global Christianity, and the Committee on Migration of the U.S. Conference of Catholic Bishops titled “One Part of the Body: The Potential Impact of Deportations on American Christian Families” examines what it might mean for American Christians that Trump is pursuing the “largest deportation in U.S. history.”

As of 2024, there were more than 10 million Christian immigrants present in the United States who are vulnerable to deportation. The report finds that almost one in ten Christians in the United States, including 6 percent of evangelicals and nearly one in five Catholics, are at risk of deportation or may lose a family member if the government deports vulnerable individuals.

The report begins:

The Apostle Paul describes the church of Jesus Christ as “one body” that is “not made up of one part but of many,” each of which is distinct from and yet interdependent upon the other parts (1 Cor. 12:13-14). Furthermore, we are called to both rejoice and to suffer together: “If one part suffers, every part suffers with it; if one part is honored, every part rejoices with it” (1 Cor. 12:26).

“A significant share of the immigrants who are a part of our body are vulnerable to deportation,” the report continues, “whether because they have no legal status or their legal protections could be withdrawn.”

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