The Insurrection Act: Troops and Boots? There's no proof.
Legal systems are not crafted to perfectly solve any problem. They are a mess of compromise, frayed at seams that never get fully patched because it is impossible to capture all the complex messy nuances of human behavior and society. U.S. law is a system of counterbalances layered on top of interpretations made by (mostly) men who were the products of their time. A common law system like ours accumulates these errors in both the laws and in the precedents formed by decisions interpreting the laws.
Legal systems are machines with no blueprint constructed by people who compromise, who make mistakes, and who often don’t fully understand the consequences of their decisions. Then they die or leave office and unless something clears the underbrush they exist forever like tripwires. Trump’s assault on the legal system is just an escalation of the pattern of abuse that he has practiced his entire career, so with any diktat from this administration we must think as “creatively” as he does, to appreciate the dangers ahead.
On January 20th, 2025, the day Donald Trump took the oath of office, he signed Executive Order 10886, nominally to deal with drugs and weapons trade on the border. If one believed that the President had the best interests of America at heart, one could be forgiven for seeing nothing unusual about this particular order. Security at the southern border is a reasonable problem, and this order points out rightly that the scourge of the fentanyl trade has devastated the lives of hundreds of thousands of Americans. Yet nestled within the legalistic and technical language that always drives the federal bureaucracy, there is a passage we should appreciate:
“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.”
The intent of this passage is to create a pretext for invoking the Insurrection Act of 1807, which would allow the President, as Commander-in-Chief, to deploy American troops on American soil and federalize state National Guard units of the states in three circumstances: (i) if requested by the legislature of a state, (ii) to address an insurrection in a state that makes it impracticable to enforce the law, or (iii) to suppress an insurrection or other violence in any state that results in the deprivation of constitutional rights which the state is unable to address. This sounds ominous, but historical use of the Act varied, from integrating schools in Little Rock, Arkansas, to federal policing in response to the 1992 Los Angeles riots.
The Insurrection Act is not a form of martial law. It’s simply an authority that allows for the deployment of American troops on American soil. Civil liberties remain intact—including the right to protest and to assemble. Civilian courts will continue to function, and there are few restrictions the invocation of this act upon civil liberties can reliably effect. Its invocation is likely to invite legal challenges, and soldiers have standing orders to disobey illegal orders. The military is more tightly bound by the legal system than many other government institutions, by design. Both in culture and in actuality, few military officers feel comfortable dispensing with the rule of law.
By the terms of the EO, the earliest this act would likely be invoked would be April 20th, as the EO allows for 90 days of legal review to explore the possibility of its use. The invocation of the Act is also not guaranteed, nor automatic, and the President has a history of threatening to invoke the Act without actually doing so.
But we shouldn’t take anything this administration does at face value. There is fear in the air and almost a mystique around this order. On social media many individuals with influence have focused on this date in particular as one of danger for the future of the Republic. April 20th is also unfortunately Hitler’s birthday, adding chum to a toxic brew of rumor, fear, and speculation. While this order is ominous and we do not downplay the dangers of this Administration in any capacity, even with a probable invocation there are limits to what it allows.
The plans indicated in the EO are meant to introduce the concept of using the military on American soil under a plausible justification of dealing with fentanyl at the border, but this would only be the foothold for the administration to gain authority beyond what the Insurrection Act allows—to incrementally stretch authorized powers into something more tyrannical. It’s a tactic Trump has used again and again. Assert some authority under a manufactured emergency, justified with the flimsiest of pretexts, to grant himself and his acolytes a bit more space to do otherwise unlawful or morally reprehensible things.
The EO itself gives little away about how many troops would be deployed if the Insurrection Act were invoked. Recently, a military operational zone was declared along the southern border by the Administration, which seems to be a regulatory change to support the deployment of troops for enforcement duties. Due to operational limitations, initial deployments are likely to be minimal.
Troop movements at any scale are also extremely expensive in both money and support personnel. Many war planners use a 9-to-1 ratio to decide the size of an expeditionary force: For every war fighter, 9 support troops are required. The U.S. Military is a technologically advanced force that depends upon very long chains of technical experts, logistics, intelligence, and complex systems that allow it to punch far above its weight against a peer adversary.
While a domestic deployment may require less support because many services, such as food or lodging, could be handled using local resources like hotels for quartering, even then, the manpower requirements for a deployment at scale inside a nation as large as America would be vast. The U.S. Military, fully deployed on American soil with no other obligations, have an order of magnitude less than the required people to actually occupy their own country. Troops may be in the streets one day under this Administration with the intent to use force against protesters, but the manpower requirements are vast, and the scale of recent protests against the Administration would not be easy to contain militarily and would require extensive planning, even if the problem of legality could be resolved in the Administration's favor.
The U.S. Military is an expeditionary force trained and oriented for foreign lands; it uses high technology and long range precision strikes to disrupt massed columns of armor and personnel at range by targeting logistics hubs, command centers, and bridges. It is not a local policing force and is not effective in garrisoning large amounts of territory. It does not have the equipment or the training to be effectively employed against U.S. citizens. Unfortunately, this raises the possibility of catastrophic error on the part of commanders or soldiers if it were used this way, but it also makes it less likely that an attempt to use it for such policing actions would actually succeed.
The authoritarian project must maintain plausible deniability while it expands, lest it trigger even more of the mass demonstrations than we are already starting to see. Setting aside the impracticality of the preparations needed to mobilize the military in substantial numbers on U.S. soil, allowing such preparations to be seen (and these would be so large that they couldn’t be hidden) would also show the Trump Administration’s hand too early. They need to be able to say that their detractors are overreacting. If we are proven right about this Administration's intentions too early, then its credibility will erode even faster. Go too far, too fast, and we may see commanders and soldiers choosing to disobey orders that they perceive to be illegal or immoral.
This problem is further compounded by the necessary secrecy around a government using a highly trained, professional and restrained military in a subversive fashion. Subordinate commanders would need to be kept in the dark until the last possible minute. Without clarity of mission coming from the top, troops will be unprepared to execute on that mission. We would know far in advance of such an action, because meticulous planning and prepositioning of assets would be required, and this Administration is not known for operational security. Planned expeditions are likely to be leaked to the press far in advance. Thus far, there have been no indications of preparations for mass deployment.
Outside of deploying active military troops, the Insurrection Act could allow the government to federalize the National Guard, and this is worrisome. If this happens as a way to weaponize the military against the citizens of the United States, Americans must be prepared to provide meaningful opposition, primarily in the form of larger mass actions. It is better to act sooner rather than later if the Administration chooses to do this because such an action would be wildly unpopular. Even an authoritarian regime must carefully gauge public opinion lest the resulting backlash destroy its credibility.
For Donald Trump, the real value in invoking the Insurrection Act is stoking fear. How many citizens will choose to stay home rather than protest this Administration's actions if the threat of military force, though unused—exists? Could the Administration use the military in a more limited way to try and cow the rest of us into silence? It could, and we must be mentally prepared for that eventuality. But we are not engaged in insurrection. We are engaged in nonviolent protest. This is our right and solemn duty as citizens of a free nation. Our service men and women know this as well. Do not allow fear of an abstraction to deter you, because the worst future that they could possibly inflict on us will never come if we remain resolute and steadfast in our opposition.
This is why Mass 50501 focuses so heavily on mass demonstrations and local community building. By building a nonviolent resistance force with connective tissue between academics, organizers, and the general public—we become resilient to the fear Donald Trump intends to evoke with this action and others. Collectively, we can reassure and calm the public, provide understanding of the real dangers on our horizons, and dispel the sum of our fears and the myths around the use of military power. As Mass 50501 and the movement at large builds up strength, strategic options will open up, and we will apply political pressure at the weaknesses that will emerge as this Administration makes unforced errors.
While they are likely to invoke the Insurrection Act in some way, it changes nothing about our strategy and long-term goals. The Trump Regime's popularity has already begun to erode. Institutions like law firms, academia, and civil society are already in the process of forming large coalitions and mutual aid pacts to ensure defense of our long held institutional values like adherence to the Constitution, rule of law, and free speech. Protests are growing in number and ferocity as the dark reality of this Administration's intentions begin to sink in with the public.
Their foolish tariffs and the resulting damage to the economy are softening support among elites. International actors like the Canadian government are deliberately targeting Trump’s political base with their retaliatory tariffs, ensuring that we will have a never-ending supply of volunteers and participants to provide money, aid, and boots in the streets to hold the constitutional Maginot Line. This movement is still in the beginning of its formation, but we are already one of the largest grassroots resistance movements in American history. The Administration's threat to invoke the Insurrection Act is not a demonstration of unassailable strength, but of severe political, legal, and moral weakness. If they were confident of the popularity of their project, then such bleak and offensive measures would not be required.
This country, for all its flaws, belongs to us, and we will not let them take it—Insurrection Act or no.
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