What is the Insurrection Act, could it help Trump deploy troops to cities?

President Donald Trump has threatened to invoke the Insurrection Act^[1], the federal law dating back to 1807, if courts or state officials delay his plans to deploy soldiers to US cities in support of his anti-immigration crackdown.

The threat came as his efforts to deploy the National Guard in Portland, Oregon, were temporarily blocked by a federal judge on Monday, and the Democratic governor of Illinois dubbed troop deployment to the state capital, Chicago, an “invasion”^[2].

The US president has already deployed troops in the federal district of Washington, DC, and the state of California, citing rising crime and the harbouring of undocumented immigrants.

So, why does Trump want to invoke the 19th-century act, and what are the legal hurdles ahead?

Is insurrection happening in Portland?

On Monday, Trump claimed that an insurrection is taking place in Portland, without evidence. “I really think that’s really criminal insurrection,” he said in the White House.

Democratic Oregon Governor Tina Kotek rejected the claim. “There is no insurrection in Portland. No threat to national security,” she said.

An insurrection is when people violently revolt against the government or those in power. But events in Portland do not support Trump’s claim.

Protests against Trump’s mass deportations indeed took place in Portland near an Immigration and Customs Enforcement (ICE) building over the weekend. The protesters clashed with federal officers, including those affiliated with the Department of Homeland Security (DHS) and Customs and Border Protection.

At least two people were arrested following the clashes on October 4. The police force said the two people were not following orders and were “in aggressive behaviour toward each other in the street”.

What is the Insurrection Act?

The Insurrection Act is a federal law that gives the US president the power to deploy the military or federalise National Guard troops anywhere in the US to restore order during an insurrection.

The National Guard^[3] is a branch of the US military that helps with both state and federal tasks. States mostly use it for emergencies, but the president can also send Guard troops on missions abroad. It is typically the governor of a state who can deploy National Guard troops in the respective state.

The Insurrection Act was signed into law in 1807 by then-President Thomas Jefferson. However, it can be traced back to the Militia Acts of 1792, two acts which defined the president’s power to call state militias into federal service during emergencies.

The Insurrection Act works in tandem with the Posse Comitatus Act of 1878, which prevents the president from invoking the National Guard. The president can circumvent the Posse Comitatus Act by invoking the Insurrection Act in the event of an insurrection.

On Monday, Trump said he would invoke insurrection if necessary. “We have an Insurrection Act for a reason,” he said. “If people were being killed and courts were holding us up, or governors or mayors were holding us up, sure,” he told reporters in the Oval Office.

Can Trump invoke the Insurrection Act?

Constitutional lawyer Bruce Fein told Al Jazeera that presidential powers under the Act apply only in cases of major rebellion, equivalent to the US Civil War, where normal law enforcement and courts can’t function.

“No underanged person believes a rebellion is under way in Portland,” Fein said.

However, Fein added that it is unclear whether a president’s declaration of insurrection can be challenged in court.

“Congress, however, could impeach and remove Trump for misuse of the Act in Portland,” Fein said, adding that military law obligates personnel to disobey orders that are clearly unlawful.

He said Trump’s use of the Act in Portland would be “clearly illegal” even if it cannot be challenged in court.

How did Trump deploy the National Guard without invoking the Act?

The first time Trump deployed the National Guard was in June, when he deployed 2,000 National Guard troops^[4] to Los Angeles in California.

This was in response to protests in California against ICE arresting people for violating immigration laws in the city. California Governor Gavin Newsom did not agree with Trump’s National Guard deployment in his state back then.

Hence, instead of the Insurrection Act, which would have required Newsom’s approval, Trump invoked a similar federal law, called the Title 10 authority, to deploy the California National Guard without Newsom’s approval.

“Trump’s use of [Title 10] has been challenged in lower courts with mixed success. Will probably be soon decided by SCOTUS [Supreme Court of the United States] with odds in Trump’s favor,” Fein, the constitutional lawyer, said.

In August, he deployed 800 National Guard members^[5] to Washington, DC, citing a crime emergency^[6] and saying violent crime was out of control.

On Saturday, Trump authorised the deployment of 300 National Guard troops to Chicago, where citizens are protesting against an ICE immigration crackdown.

On Monday, Illinois leaders moved to take legal action against Trump over the deployment. The state of Illinois and city of Chicago filed a lawsuit^[7] in the US District Court, Northern District of Illinois, Eastern Division.

The lawsuit says “these advances in President Trump’s long-declared ‘War’ on Chicago and Illinois are unlawful and dangerous.”

Democratic Illinois Governor JB Pritzker said a court hearing is scheduled for Thursday.

When was the last time the Insurrection Act was invoked?

The Insurrection Act has been invoked in response to 30 incidents, according to the Brennan Center for Justice.

The last time it was invoked was in 1992, in response to riots in Los Angeles by Republican President George HW Bush.

The riots broke out after four police officers were acquitted in the beating of Rodney King, a Black man. After six days of riots, 2,000 National Guard troops and 1,500 Marines were deployed. The violence resulted in 63 deaths and widespread looting, assaults and arson.

What is happening in Portland?

On Saturday, Trump used his Title 10 authority to send 200 National Guard troops to Oregon. However, a federal judge temporarily blocked the move. The temporary block lasts until October 18.

Following the court order, Newsom, the California governor,^[8] said on Sunday that Trump was sending 300 California National Guard members to Oregon^[9]. Washington has not officially made an announcement about this deployment. But Kotek confirmed that the California troops had already arrived in Oregon.

Newsom deemed the deployment a “breathtaking abuse of the law and power”.

“We will take this fight to court, but the public cannot stay silent in the face of such reckless and authoritarian conduct by the president of the United States,” he said.