What is the Insurrection Act?

What is the Insurrection Act?

While U.S. law generally prohibits the use of the military for domestic policing, the Insurrection Act is a federal law that gives the President of the United States the authority to deploy the U.S. military or federalized National Guard inside the country under certain circumstances.

First enacted in 1807, the Insurrection Act was intended for extraordinary situations, such as rebellion, widespread violence, or the collapse of state and local law enforcement, when civilian authorities are unable or unwilling to enforce the law.

Unlike most exercises of federal power, the Insurrection Act allows the President to act without prior approval from Congress or state governors, making it one of the most expansive and controversial emergency authorities available to the executive branch.

What does the Insurrection Act allow the President to do?

Under the Insurrection Act, the President may deploy military forces if:

• A state legislature (or governor, if the legislature cannot convene) requests federal assistance;

• State or local authorities are unable or unwilling to enforce federal law or protect Constitutional rights; or

• The President determines that “insurrection, domestic violence, unlawful combinations, or conspiracies” make enforcement of the law impracticable through ordinary means.

Critically, the law does not clearly define what qualifies as an “insurrection” or “domestic violence.” This ambiguity gives the President broad discretion and has led legal scholars across the political spectrum to call for clearer limits and guardrails.

While courts have affirmed that the President holds primary decision-making power under the Act, troops deployed domestically remain bound by federal and state law.

Why are we talking about the Insurrection Act right now?

In a social media post today, President Trump threatened to invoke the Insurrection Act, saying he would deploy military forces in Minnesota if state leaders didn’t “stop the … insurrectionists from attacking” federal immigration agents amid ongoing protests in Minneapolis. 

The unrest follows a surge of federal immigration enforcement following fatal and non-fatal shootings by Immigration and Customs Enforcement (ICE) officers that have sparked sustained demonstrations and national debate.

Legal experts say using the Insurrection Act in response to protests, especially when state officials have not requested military intervention and civilian courts are fully operating, raises serious Constitutional and ethical concerns about executive power, civilian governance, and the role of military force in domestic affairs.

How has the Insurrection Act been used in the past?

Historically, presidents have invoked the Insurrection Act sparingly and usually in response to genuine breakdowns of civil order:

• During the Civil Rights era, Presidents Eisenhower, Kennedy, and Johnson used the Act to enforce desegregation and protect Black Americans when state governments refused to uphold federal law.

• In 1992, President George H. W. Bush invoked the Act when the governor of California requested military aid to assist local authorities during the Los Angeles unrest following the Rodney King verdict.

How does this relate to the Posse Comitatus Act and martial law?

The Insurrection Act is a rare exception to the Posse Comitatus Act, which generally prohibits the U.S. military from engaging in domestic law enforcement.

When the Insurrection Act is invoked, this long-standing safeguard is effectively paused, allowing military forces to assist civilian authorities. Importantly, this is not the same as martial law, in which the military replaces civilian government entirely – but it does represent a significant shift in the balance between civil authority and military power.

Why does this matter – especially for Jewish communities?

A significant number of Jews live in Minnesota, some of whom are participating in local protests against ICE activities. The deployment of military forces without training in domestic law enforcement risks escalating tensions, restricting their First Amendment rights, and endangers everyone.

Further, Jewish communities have long been vulnerable to arbitrary government power, emergency decrees, and the erosion of legal protections, often justified during moments of fear or crisis. Democracy depends not only on elections, but on restraint, rule of law, and clear limits on power. When emergency authorities are broadly defined and weakly constrained, history shows that minority communities are often among the first to be harmed.

Legal experts warn that normalizing expansive emergency powers creates precedents that can be used again, by future leaders, in different contexts, and against different groups.

What can be done?

Learn → Understand the Insurrection Act, its history, and how it intersects with Constitutional protections like due process and equal protection. Learn more about the threats to democracy posed by the militarization of public life.

Speak → Talk with your community about how invoking the Insurrection Act can have serious implications for American democracy, including the safety and civil liberties of American Jews.

Act →

• Reach out to friends and partners in Minnesota to see how you can best support them. 

• Call on Congress to demand that the President not invoke the Insurrection act, and to amend the law to prevent its abuse.