The Case Against Deferring to Presidential Invocations of the Insurrection Act |
Donald Trump
Prof. Josh Braver questions the conventional wisdom on this issue.
Ilya Somin | 1.30.2026 10:00 AM
Donald Trump has often threatened to invoke the Insurrection Act as a tool for using the military against his domestic opponents. Many observers believe this became more likely after the Supreme Court ruled against his efforts to federalize state National Guard units and use them for domestic law enforcement under a different statute.
The conventional wisdom on the Insurrection Act is that the president is entitled to broad judicial deference if he invokes it. In an important new article, Prof. Josh Braver (University of Wisconsin) argues that the conventional wisdom is wrong. Here is the abstract:
This article argues that courts do not owe substantial deference when the President seeks to deploy the military domestically under three of the Insurrection Act's four trigger provisions. The exception is Section 252, which authorizes deployment "[w]henever the President considers" that has become "impracticable to enforce the laws . . . by the ordinary course of judicial proceedings." This Article defends that claim through analysis of the Act's text, statutory history, and legislative history.
The core argument turns........