Veering into Authoritarianism: The Political Implications of the Insurrection Act

In a series of federal–local showdowns over National Guard deployments in cities like Chicago and Portland, the White House has publicly flirted with invoking the Insurrection Act — a rarely used authority that can put federal troops into local law-enforcement roles. If invoked, it would fundamentally reframe the way presidents are allowed to respond to and control domestic affairs. Vince Warren, executive director of the Center for Constitutional Rights, warns the implications stemming from the fight around the Insurrection Act could create a new reality where “the president is the mad king.”  How the courts and the American people respond to this possibility will impact the future of presidential power.

To understand the importance of this showdown, it is first necessary to take a step back and examine the history of the Insurrection Act. The Act, originally passed in 1807, is now utilized mainly to circumvent the later-created Posse Comitatus Act of 1878 — an act made to prevent military forces from “pervading” upon civilian functions, or acting as law enforcement. The Insurrection Act allows the president to deploy the National Guard or federal armed forces to deal with “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States.” This act has been invoked a few times in the past — most famously, Presidents Eisenhower, Kennedy and Lyndon B. Johnson all invoked the Insurrection Act during the civil rights movement to enforce federal court orders desegregating schools and other institutions in the South. The last time it was invoked was 1992, when then-governor of California Pete Wilson requested military aid from President George H.W. Bush to respond to the riots that followed Rodney King’s death. In the past 130 years, the Insurrection Act has only been used either when governors asked for military assistance, or when state authorities were themselves actively obstructing federal civil rights laws or violating constitutional rights.

Today, the president is considering invoking this Act once again — this time, in response to a series of court rulings blocking his deployment of the National Guard to cities like Portland, Memphis and Chicago. One of these cases is particularly striking — on November 7, a federal judge in Oregon issued a permanent injunction, the first of its kind, which barred the Trump administration from sending National Guard forces into Portland. Across the country, rulings have generally followed this trend — courts in California blocked National Guard deployments to L.A., courts in Tennessee issued temporary injunctions against the National Guard in Memphis and district courts in Illinois ruled in favor of a temporary restraining order against the deployment of the Guard in Chicago. As these unfavorable rulings continue to flow in, and the president continues to publicly threaten more drastic measures, it’s important to consider what invoking this Act in today’s political context would mean for the future of the executive branch and presidential power. 

In an interview with The Gate, Vince Warren described the future implications surrounding the invocation of the Insurrection Act. He calls the Act an “ultimate presidential power-up,” as it significantly expands the scope of the president’s authority. Warren warns that it “should not be used as a political tool,” and that if it is, “we risk the nation sliding toward a police-state structure, where law enforcement is used as a tool to silence the people.”

Practically speaking, the Insurrection Act authorizes the President to utilize not only the National Guard, but also regular armed forces, for any domestic law enforcement function, as long as “he considers [it] necessary” to enforce federal law against “obstructions.” Effectively, this is a presidential power that exists with virtually no checks — the leading Supreme Court case regarding this act, Martin v. Mott, 1827, suggests that the president has the “exclusive” authority to determine what “exigencies” can trigger the usage of the Act.

Warren comments that “the challenge that we have now is where there seems to be an alignment of all three branches — there’s nothing that’s stopping the blatantly illegal, unconstitutional and unwise policies […] from moving forward.” Importantly, the implications of this kind of power extend beyond the current presidency, far into the future of U.S. governance. Warren warns that no president would ever willingly give up a power they inherited, no matter their stance on it before the presidency. With the precedent the usage of the Insurrection Act would set, he mentions that “presidents will be more likely to either seize upon a legitimate emergency or manufacture one in order to move their policy aims through without resistance from Congress or the judiciary.”

But not all hope is lost — while some, including Professor Barry Sullivan, the Raymond and Mary Simon Chair in Constitutional Law and the George Anastaplo Professor of Constitutional Law and History at Loyola University, argue that the doctrine of separation of powers may be fading from the current government, there is still what Warren coins as the “fourth branch”: mass public mobilization. He references the civil rights movements in the 1960s, the 1970s anti-war movement and pro-Palestinian protests in 2025 to demonstrate that “people do have the ability to shift at least the political branches of government to move in a different space.” Warren believes that it’s this ability that will motivate the U.S. populace to pursue governmental reform. When people become, as he says, “aware that their moral position or their material position is being compromised by a policy,” they will serve as the ultimate check on governmental power.

In a political climate dominated by the executive branch, everyone’s choices — from government officials to everyday American citizens — are crucial. They will either restore the Constitution’s intended checks and balances with regard to domestic policing or lock in a one-way ratchet of presidential power that will fundamentally shift the balanced hierarchy between the branches of government. The Insurrection Act may act as a bellwether for which path the country will go down. 

Image “National Guard protects U.S. Capitol” by Flickr is licensed under CC BY-NC 2.0 and can be found here.