The Trump administration has flooded Minneapolis with thousands of immigration enforcement officials who have killed, shot and brutalized its inhabitants.
Protests have ramped up accordingly. Videos show ICE officers using force against the protesters, in some cases reportedly taunting them with ICE officer Jonathan Ross’ killing of U.S. citizen Renee Good last week. Minnesota Gov. Tim Walz (D) has put the National Guard on standby.
And Thursday morning, President Trump posted on Truth Social: “If the corrupt politicians of Minnesota don’t obey the law and stop the professional agitators and insurrectionists from attacking the Patriots of I.C.E., who are only trying to do their job, I will institute the INSURRECTION ACT…”
Trump has been fixated on the Insurrection Act since nationwide protests broke out over the police killing of George Floyd during his first term, but he never invoked it.
There wasn’t an insurrection then, experts on the Act told TPM, and there isn’t one now.
1. The administration is trying to reverse-engineer a pretext to invoke the Insurrection Act.
The Trump administration is encouraging ICE clashes with protesters, supporting agents’ use of disproportionate force in response and furiously spinning the violence as the protesters’ fault. This playbook extends to the killing of Good, who the administration claimed, contrary to video evidence, was trying to run over Ross with her car when he fired his gun three times, shooting her in the face.
“The government can’t manufacture something, call it an insurrection, then invoke the Insurrection Act to cure a disease they caused,” said Harold Hongju Koh, professor of international law at Yale Law School.
But that’s exactly what they’re trying to do — despite the fact that, taken against a historical context of an early American government that was extremely skittish about standing domestic armies, the Act was only meant to speak to extreme circumstances.
While not every past invocation of the Act was “perfectly justified by the circumstances,” invoking it in response to ICE-instigated protests in Minneapolis would be “flagrant abuse,” Joseph Nunn, counsel in the Brennan Center’s Liberty and National Security Program focusing on domestic military activity, told TPM.
2. There’s not much case law around the Insurrection Act.
If Trump does invoke the Insurrection Act, Minnesota will likely sue. And already, we’d be in unchartered territory.
“No state has ever challenged in court an invocation of the Insurrection Act,” Nunn said. “And the reason for that is that the Insurrection Act has never been abused in this way.”
Instead, we have a history of presidents deciding unilaterally that they lack the power to invoke the Act — self-restraint that the Trump administration habitually lacks. Still, Trump hasn’t invoked the Act to date, one of the few whims he hasn’t indulged while in office.
“Trump’s post today is just a dog whistle,” Koh said. “There are two laws he wanted to invoke the whole time: The Alien Enemies Act — which the Supreme Court didn’t go along with — and the Insurrection Act, which he’s stayed away from. It’s almost the only example of him hesitating to overreach.”
3. The Supreme Court shutting down Trump’s National Guard occupations may have been a warning shot.
In a late December emergency ruling, the Supreme Court ruled that Trump could not deploy the National Guard in Chicago. Only the bench’s rightmost wing — Justices Samuel Alito, Clarence Thomas and Neil Gorsuch — dissented, showing that a majority has at least some willingness to push back against the president’s effort to insert the military into domestic law enforcement.
The Court also shot down Trump’s attempt to contort the Alien Enemies Act into a free pass to deport with no due process.
Those rulings, both made on the emergency docket, are more the exception than the rule, though, for a right-wing Court that has reflexively expanded Trump’s executive power.
4. The Insurrection Act has no time limit.
Therein lies the danger. The Act was meant to be invoked for as long as the insurrection lasts. Its abuse could put soldiers on American streets for an indefinite period.
5. There’s also no statutory specification regarding which troops should be sent.
“Historical practice and DOD policy do establish that they generally seek to use units more relevantly trained and equipped — they wouldn’t send tanks,” Nunn quipped. “If possible, DOD tries to send [military police].”
Still, he stressed, crowd control and domestic law enforcement is not something soldiers are trained to do.
