President Donald Trump would like to invoke the Insurrection Act of 1807. So would his circle, including his powerful deputy White House chief of staff Stephen Miller. One compelling indication of this is their repeated use of “insurrectionist” and similar words to describe the protesters that irk them.
Trump has also made the threat explicit. In October 2025 he said: “Well, I’d do it if it was necessary. So far it hasn’t been necessary. But we have an Insurrection Act for a reason. 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 do that.”
Around the same time Miller wrote, of an unwelcome court order: “Legal insurrection. The president is the commander-in-chief of the armed forces, not an Oregon judge. Portland and Oregon law enforcement, at the direction of local leaders, have refused to aid Ice [Immigration and Customs Enforcement] officers facing relentless terrorist assault and threats to life… This is an organised terrorist attack on the federal government and its officers, and the deployment of troops is an absolute necessity to defend our personnel, our laws, our government, public order and the republic itself.”
More recently, on 15 January 2026, Trump again made the threat expressly: “If the corrupt politicians of Minnesota don’t obey the law and stop the professional agitators and insurrectionists from attacking the patriots of Ice, who are only trying to do their job, I will institute the INSURRECTION ACT, which many presidents have done before me, and quickly put an end to the travesty that is taking place in that once great state. Thank you for you attention to this matter!”
As New York magazine put it: “Trump and Stephen Miller see insurrection everywhere.”
Once it is understood that this is Trump and Miller’s intention, then a great deal of how the federal government is dealing with demonstrations and disquiet becomes comprehensible. What Trump, Miller and others are doing is working backwards from their objective. Such an invocation would perhaps be more precious to them even than the Nobel Peace Prize.
Once the Insurrection Act is invoked, Trump and Miller can mobilise regular military forces and the National Guard against US citizens. This would allow them to use an exception to the federal law that prevents such a thing from happening. The key power would be for the president to use the military and the National Guard “as he considers necessary, to enforce those laws or to suppress the rebellion”.
That confers considerable discretion on the president. On the face of it, the provision is not limited to what is objectively necessary but what the president “considers necessary”. And what Trump, Miller and their circle would “consider necessary” could be very broad indeed.
One legal scholar has set the parameters as “situations in which the President is acting in bad faith, where he has exceeded a ‘permitted range of honest judgment’, where he has acted in a way that involves ‘manifestly unauthorized exercises of power’, or where he has made an ‘obvious mistake’… The president can cross a line where the courts have the authority to step in.”
But as long as Trump can plausibly say he is within those parameters, the powers under the Insurrection Act are his for the taking.
This hunger for invoking the Insurrection Act prompts an obvious question: why has the administration not done so yet? The answer, at least in part, is that there’s a risk even with a conservative-dominated federal judiciary that the courts will not uphold such a step lightly. Early judicial push-back may frustrate the grander project of invoking the act. They therefore need to convince that the invocation is necessary.
An earlier attempt to mobilise the National Guard, short of invoking the Insurrection Act, was blocked by the Supreme Court in December 2025. As the Scotus blog explained: “In a three-page unsigned order, the justices turned down the government’s request to put the temporary restraining order issued by US District Judge April Perry on Oct 9 on hold while litigation continues in the lower courts. ‘At this preliminary stage,’ the court said, ‘the government has failed to identify a source of authority that would allow the military to execute the laws in Illinois.’”
It was a rare defeat for the Trump administration. And so, as one commentator on social media put it, the federal government is “facing some challenges at making it convincing enough for John Roberts and [Amy Coney Barrett] to go along”. Roberts and Barrett are the two conservative Supreme Court judges least likely to support automatically whatever Trump’s administration comes up with.
Trump and Miller, therefore, have to come up with not only a supposed “insurrection” but a legal justification that the majority at the Supreme Court can just about nod along with, even if they don’t clap and cheer. To put such a justification together requires thought and effort, and so they are taking their time.
There is another reason for the federal government to be cautious. The use of “emergency” legislation by Trump to impose tariffs freely is being decided by the Supreme Court and some onlookers predict it may be sceptical. The court’s decision, which is expected soon, may provide clues on how the justices would approach the use and abuse of other emergency legislation.
The Trump administration has already made extensive use of permissive legislation, such as the International Emergency Economic Powers Act of 1977 and Alien Enemies Act of 1798, with their wide powers for the executive. There is no serious doubt Trump and his advisers would also use the Insurrection Act, if they can get away with it. For them it is just a question of timing and opportunity.
That they have not done this yet shows that there is still a glimmer of constitutionality in what otherwise seems a vicious free-for-all engulfing the United States polity. This is cause for limited optimism. Emergency legislation is there to deal with emergencies, not to cause them.
[Further reading: The special relationship is dead]
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