The Insurrection Act is back on the table

Summary

Consider This from NPR: The Insurrection Act is Back on the Table

Release Date: June 9, 2025
Host: Ari Shapiro

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Introduction

In this episode of NPR's "Consider This," host Ari Shapiro delves into the resurgence of the Insurrection Act in American political discourse. With President Donald Trump again contemplating the deployment of active-duty troops to American cities, the discussion explores the historical context, legal implications, and potential ramifications of such actions in today's political climate.

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Historical Context and Recent Developments

Ari Shapiro opens the discussion by referencing a pivotal moment from the summer of 2020 when President Trump considered deploying active-duty troops amidst nationwide protests following George Floyd's murder. Former Defense Secretary Mark Esper publicly opposed this move.

Mark Esper (00:07): "The option to use active duty forces in a law enforcement role should only be used as a matter of last resort and only in the most urgent and dire of situations. We are not in one of those situations now."

Esper recounted a troubling conversation where Trump allegedly suggested using lethal force against protesters, a claim Trump has vehemently denied.

Fast forward five years and a re-election, President Trump has reignited the debate by deploying California National Guard units to Los Angeles in response to protests against federal immigration raids.

Donald Trump (01:41): "You have violent people and we're not going to let them get away with it."

This move has sparked significant controversy, especially as Trump hinted at expanding military presence to other cities.

Donald Trump (01:46): "Well, we're going to have troops everywhere. We're not going to let this happen to our country. We're not going to let our country be torn apart like it was under Biden."

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Governmental Pushback and Legal Challenges

The deployment has faced strong opposition from Democratic leaders in California. Governor Gavin Newsom announced legal action against the Trump administration, labeling the move as unlawful.

Mark Esper (01:12): "I was fairly confident that the president would replace me with an uber loyaltist, if you will, who would do exactly."

The tension between federal authority and state governance raises critical questions about the legality and appropriateness of such military interventions in civil matters.

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Expert Analysis: Legal and Political Implications

To provide a deeper understanding, NPR's Ari Shapiro interviews Juliette Kayem, a former Homeland Security official and current Harvard professor. Kayem examines the legal boundaries of deploying the National Guard and the potential invocation of the Insurrection Act.

Juliette Kayem (05:04): "The president's authority to federalize the National Guard has been limited in the past to when either a governor does not follow law... But we didn't see that this weekend."

Kayem explains that the Insurrection Act permits presidents to deploy active military forces to quell insurrections or significant unrest, a move that blurs the lines between military and civilian roles.

Juliette Kayem (05:50): "The Insurrection act is essentially a way for a president to militarize first responders."

She underscores the gravity of such a decision, emphasizing that the deployment of active military forces in urban settings can undermine the long-standing civil-military distinction in the United States.

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Political Strategy and Future Ramifications

Discussing Vice President Vance's social media post, Kayem critiques the administration's rhetoric framing immigration-related protests as insurrections, potentially setting the stage for invoking the Insurrection Act.

Juliette Kayem (07:33): "This is an administration that knows what words to use... They're putting out language that is going to protect them, I believe, in any future legal proceedings."

Drawing parallels to Trump's broader strategy, Kayem observes a pattern of using federal power to target political adversaries rather than engaging through established political processes.

Juliette Kayem (09:29): "What we're seeing, whether it's contracts, whether it's certification of educational institutions... is that brute force rather than negotiation through processes that already exist."

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Legal Uncertainties and Future Outlook

Governor Newsom challenges the legality of the National Guard deployment, arguing that President Trump has overstepped his authority. Kayem highlights the lack of precedent and clear legal guidelines, suggesting that this confrontation could lead to new legal doctrines.

Juliette Kayem (08:25): "I don't know how he's going to do in court... There's not a lot of case law here."

The uncertainty surrounding the legal battle could have lasting implications for federal-state relations and the interpretation of presidential powers in times of civil unrest.

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Conclusion

As the Insurrection Act surfaces in contemporary politics, NPR's "Consider This" provides a comprehensive examination of its potential use and consequences. Through historical context, expert insights, and analysis of current events, the episode underscores the delicate balance between maintaining order and preserving civil liberties. The unfolding legal battles and political strategies will undoubtedly shape the future of federal authority and military involvement in domestic affairs.

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This episode was produced by Megan Lim and Connor Donovan, with contributions from Juliette Kayem, and features insightful analysis on a pressing national issue.

Transcript

[Ari Shapiro]

The last time President Trump wanted to send active duty troops to American cities, his secretary of defense publicly disagreed.

[Mark Esper]

The option to use active duty forces in a law enforcement role should only be used as a matter of last resort and only in the most urgent and dire of situations. We are not in one of those situations now.

[Ari Shapiro]

That's former Defense Secretary Mark Esper in the summer of 2020, as protests swept across the country after the murder of George Floyd. And Esper told NPR in 2022 that behind the scenes, Trump suggested going even further to quell protests. Esper recounted a conversation that included then Joint Chiefs of Staff Chairman Mark Milley.

[Mark Esper]

He looked frankly at General Milley and said, can't you just shoot them? Just shoot them in the legs or something? And it was, it was not just a. It was a question in the form of a. Or a suggestion in a form of a question. And we were just all taken aback at that moment as this issue just hung very heavily in the air.

[Ari Shapiro]

Trump has called that claim a complete lie. Esper told NPR he thought about resigning, but ultimately stayed on the job because he worried about who would replace him.

[Mark Esper]

I was fairly confident that the president would replace me with an uber loyaltist, if you will, who would do exactly.

[Ari Shapiro]

What he wanted back in 2020. Trump eventually dropped the active duty troops in the streets idea. Well, five years and one Trump reelection later, it's back on the table. Trump has already deployed California National Guard units to Los Angeles over loud objection of the state's governor, Gavin Newsom. It's in response to protests against federal immigration raids in the city.

[Donald Trump]

You have violent people and we're not going to let them get away with it.

[Ari Shapiro]

That was Trump on Sunday before boarding Air Force One. He suggested other US Cities could be next.

[Donald Trump]

Well, we're going to have troops everywhere. We're not going to let this happen to our country. We're not going to let our country be torn apart like it was under Biden.

[Ari Shapiro]

And Trump's current Defense secretary, Pete Hegseth Said said on social media over the weekend that active duty troops were ready to mobilize if violence continues. Trump was asked on Sunday what the bar would be for sending in those Marines. His reply? The bar is what I think it is. Consider this. Throughout his second term, Trump has pushed hard to expand the power of his office. Is his National Guard deployment in Los Angeles a last resort or a first step? From npr, I'm Ari Shapiro.

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[Ari Shapiro]

It'S consider this from NPR the governor of California and the mayor of Los Angeles have objected to President Trump's National Guard deployment. Both are Democrats. They say they don't need or want these troops to manage the protests. Governor Gavin Newsom announced today that California would be suing the Trump administration for what he called an unlawful action. The Trump administration appears to be relishing the showdown with a blue state over a central part of the president's political agenda. Here's what Trump told reporters at the White House Monday.

[Donald Trump]

The people that are causing the problem are professional agitators. They're insurrectionists. They're bad people. They should be in jail.

[Ari Shapiro]

For a bigger picture, I spoke with national security expert Juliet Kyem, who is a homeland security official in the Obama administration. When do you think it's appropriate for a president to bypass a state governor to deploy the National Guard?

[Juliette Kayem]

The president's authority to federalize the National Guard has been limited in the past to when either a governor does not follow law, as we saw during the desegregation cases, or when a governor asks for it because their own resources are depleted. But we didn't see that this weekend. We saw a president look essentially at cable news, see a few cars on fire and decide to federalize National Guard troops under the command of the governor and put him under the command of himself.

[Ari Shapiro]

We heard President Trump there refer to the protesters as insurrectionists. He has not yet invoked the Insurrection act, but he still might. What would invoking that law empower him to do?

[Juliette Kayem]

The Insurrection act is essentially a way for a president to militarize first responders. I mean, that's essentially what it would be. It would be you're deploying the active military because of an insurrection or unrest to quell civil society that might be necessary in an instance that you can think of maybe in the future. That is not what happened here. I mean, the reason why we have police departments, emergency management agencies, fire departments, is because sometimes there is unrest, sometimes there are riots, sometimes peaceful protests turned not peaceful. But the idea that you would say, well, there's just unrest, therefore I'm going to either federalize the National Guard or worse, deploy under the Insurrection act, active military members think the Marines, the Air Force, into urban society is essentially the total end and erasure of this civil military distinction that has governed our country for a very long time.

[Ari Shapiro]

Let me ask you about something that Vice President Vance posted on social media, which might point to the administration's strategy here. He wrote, one of the main technical issues in the immigration judicial battles is whether Biden's border crisis counted as an invasion. He writes, so now we have foreign nationals with no legal right to be in the country waving foreign flags and assaulting law enforcement. If only we had a good word for that, end quote. Can you parse the argument he's making here and do you think it's a valid one?

[Juliette Kayem]

I'll start with the second question. No, it is not valid. This is an administration that is knows what words to use, and they're using them for potential, potentially a future case, whether they are going to invoke the Insurrection act, or as we've seen already, they're going to be challenged in court by Governor Newsom under, under the title 10 authority that Donald Trump used. So they're putting out language that is going to protect them, I believe, in any future legal proceedings. They have so lowered the floor at this stage on the standards that most rational people would use for unrest or riots or even insurrect, that. We, we have to assume that that is purposeful.

[Ari Shapiro]

And so what do you make of Governor Newsom's argument that this is, on its face, illegal and that the president exceeded his powers? Do you agree?

[Juliette Kayem]

Yeah, I don't know how he's going to do in court. I mean, part of it is because there's not a lot of case law here, because we've just never seen this before. So he may have a case. In other words, the president doesn't have unfettered ability to simply federalize the national guard. Title 10 talks in terms of words like unrest, insur insurrection, civil unrest, but those have not really been well defined by courts. And once again, an issue that could have been resolved if only the federal government viewed its role as supporting first responders and de escalating difficult decisions is heading to court. And that again will lead to new doctrine.

[Ari Shapiro]

Finally, what is happening in Los Angeles right now is obviously different from the administration's crackdown on higher education or on law firms. But do you see parallels with the way the executive branch is using the tools it has to target centers of power that Trump perceives as standing in the way of his agenda?

[Juliette Kayem]

Yes, absolutely. I mean, I have been thinking about this this weekend, that it all seems similar that what Trump cannot do through the processes of politics, he does through the processes of force. And is what we're seeing, whether it's contracts, whether it's certification of educational institutions or punishing them for having international students, or going after a governor who he clearly does not like. It is that brute force rather than negotiation through processes that already exist, that leads us to court again and again and again. But this instance is very different. The military, military deployment in society where people are allowed to protest peacefully, where there are important debates about what this country is and who we want to be. You add a military into that calculation and it's not a future. I really like seeing. It makes me worried.

[Ari Shapiro]

That is former assistant secretary at the Department of Homeland Security and current professor at Harvard's Kennedy School of Government, Juliette Kayem. Thank you so much.

[Juliette Kayem]

Thank you.

[Ari Shapiro]

This episode was produced by Megan Lim and Connor Donovan with audio engineering by Ted Mebane and Simon Laszlo Jansen. It was edited by Patrick Jaranwattanan. Our executive producer is Sami Yenigun. It's consider this from npr, I'm Ari Shapiro.

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