Trump considering a move to invoke Insurrection Act

President Donald Trump is considering invoking a 213-year-old federal law that would allow him to deploy active-duty U.S. troops to respond to protests in cities across the country, according to four people familiar with the internal White House discussions.

Trump has warmed to the idea of using the Insurrection Act, adopted in 1807, to deploy troops as his frustrations mount over the protests that have followed the death of George Floyd, a black man who was killed in police custody last week in Minneapolis.

Some of the president’s aides have been encouraging him for days to invoke the act, as he weighs options for exercising executive powers to address the crisis. The act was last invoked during the 1992 Rodney King riots in Los Angeles.

The White House did not respond to a request for comment for this article but at a briefing with reporters Monday, White House press secretary Kayleigh McEnany left open the possibility that the president could invoke the act.

“The Insurrection Act, it’s one of the tools available, whether the president decides to pursue that, that’s his prerogative,” McEnany said.

Governors can ask that the federal government send active duty troops to help in cases of civil unrest like the widespread protests plaguing U.S. cities over the last several days. But, so far, no governor has requested active duty troops to assist and instead have relied on local law enforcement and National Guard soldiers and airmen on state active duty.

Governors often prefer the National Guard forces in these cases because they can legally perform law enforcement duties in the U.S., whereas troops on active duty cannot or they violate the Posse Comitatus Act, a 1878 law that prohibits the government from using military forces to act as a police force within U.S. borders.

But the president could invoke the Insurrection Act to deploy active-duty troops without a request from a governor. Those troops would be allowed to conduct law enforcement missions. To invoke the act, Trump would first have to issue a proclamation to “immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time,” according to the law.

In the past the Justice Department has drafted such proclamations. And according to the Congressional Research Service, the act has been invoked many times throughout U.S. history although rarely since the 1960s civil rights era. When it was invoked in 1992 during the Los Angeles riots, the move was requested by then-California Gov. Pete Wilson, not invoked solely by the president.

The Defense Department declined to comment on the possibility that the president could invoke the act.

One of Trump’s allies outside the White House, Sen. Tom Cotton, R-Ark., urged Trump to invoke the Insurrection Act “if necessary” so U.S. troops can “support our local law enforcement and ensure that this violence ends tonight.”