The Insurrection Act

With resistance to ICE in many blue cities, there’s been a lot of talk about Trump invoking the Insurrection Act. There are other, lesser statutes that he can employ, but this is the big gun. It intentionally gives the President enormous freedom and power to put down resistance to the law.

This is the relevant part of the Insurrection Act:

§252. Use of militia and armed forces to enforce Federal authority

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

So first, it’s discretionary to employ: “Whenever the President considers.” This language leaves no room for judicial review, by design; it’s up to the President to determine when the predicates for invoking the Act apply. Second, this phrase, “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings,” seems to fit perfectly with what’s going on in places like Portland or Chicago.