Will Trump Invoke the Insurrection Act? - The Ben Shapiro Show

The Ben Shapiro Show – Episode Summary

Episode Title: Will Trump Invoke the Insurrection Act?
Date: January 28, 2026
Host: Ben Shapiro (The Daily Wire)

Episode Overview

In this episode, Ben Shapiro delivers a deep-dive analysis of the controversies erupting in Minneapolis as protesters and local officials actively resist federal immigration enforcement. Shapiro explores whether President Trump should—and legally could—invoke the Insurrection Act in response to escalating clashes between ICE agents and coordinated local resistance, situating the debate within centuries of American legal and political history. He breaks down the law’s origins, its past usages, the technicalities of state versus federal authority, and directly addresses objections from political opponents. The episode aims to clarify the legal and constitutional dimensions of federal intervention, stripping away what Shapiro sees as partisan distortion and historical ignorance.

Key Discussion Points & Insights

Current Crisis in Minneapolis (01:05–03:45)

Shapiro details how Minneapolis has become the epicenter of resistance against ICE (Immigration and Customs Enforcement) operations.
- Protesters are "attempting to obstruct federal law enforcement, acts of violence against ICE and Border Patrol, and the tragic deaths of two American citizens in confrontations with federal law enforcement" ([02:10]).
- Local political leaders—Governor Tim Walz, Attorney General Keith Ellison, and Mayor Jacob Frey—are "casting federal agents as the enemy" and “encouraging obstruction of law" ([01:45–02:30]).
Emphasizes the national significance: “What’s happening in Minneapolis right now… could turn into one of the most constitutionally significant domestic confrontations in decades.” ([01:15])
Draws a distinction between mere non-compliance and the "active encouragement of obstruction of federal law."

The Insurrection Act: Historical Context and Purpose (03:45–08:15)

Shapiro traces the Act back to 1807 and Thomas Jefferson's presidency as a safeguard for the “survival of the republic.”
- Describes the Burr Conspiracy as an existential threat, justifying Jefferson’s insistence on emergency powers ([04:45–06:30]).
- Quotes the original law: “...it shall be lawful for [the president] to employ… such part of the land or naval force of the United States as shall be judged necessary.” ([06:20])
Highlights: the law was never meant to “crush peaceful protest” but to "stop the upending of the American government altogether." ([06:45])
Notable parallel to today: “What is a sanctuary state in practice? It’s not just a place that refuses to do the work of federal law enforcement. In Minnesota, it has become a place that actively encourages the obstruction of federal law.” ([07:10])

Precedents of Presidential Use (08:15–10:41)

Shapiro challenges claims the act is "archaic" or "never used"—it’s been invoked over 30 times, by presidents of both parties.
- Examples: Andrew Jackson (1831), Lincoln (1861), Grant (Reconstruction), Cleveland (Pullman Strike), FDR (Detroit riot), Eisenhower (Little Rock), JFK (school integration), LBJ (race riots), and George H.W. Bush (Rodney King riots).
- “Was Ulysses S. Grant a fascist for using the military to crush the KKK and protect the rights of Black Americans? Of course not. They were enforcing the law.” ([09:20])
Argues this establishes clear bipartisan precedent for using the Insurrection Act to “preserve American liberty and federal supremacy.”

Legal Mechanics: Breaking Down the Insurrection Act (11:00–13:45)

Shapiro rebuts the argument that the Act requires a governor’s permission.
- Two sections: Section 251 (“Cooperative model”) and Section 252 (“Hammer Clause”).
- Section 251: Allows use of force "upon request" from state authorities (e.g., Rodney King riots, where Governor Pete Wilson asked for help).
- Section 252: Gives unilateral presidential authority “whenever the President considers that unlawful obstructions... make it impracticable to enforce the laws… he may call into federal service… such of the armed forces as he considers necessary…” ([12:40])
“Section 252 begins, ‘whenever the President considers’—that would be the President’s authority. There’s no clause indicating local or state consent.” ([12:50])
Lays out step-by-step how local refusal combined with breakdown in order meets the Act’s trigger conditions: "If those conditions are met, the President doesn’t just have the right to act, he arguably has the duty to act." ([13:25])

Addressing the Posse Comitatus Act (13:45–15:05)

Explains Posse Comitatus Act as a limitation on using the military for civilian law enforcement, except when “expressly authorized by an act of Congress” (such as the Insurrection Act).
“Posse Comitatus and the Insurrection Act are not in conflict. They are statutes designed to work in sequence.” ([14:20])
Outlines a “crisis sequence” in which the Act’s invocation suspends Posse Comitatus restrictions.

Double Standards, January 6, and Partisan Hypocrisy (15:05–15:55)

Highlights inconsistency in political rhetoric and application, referencing bipartisan uses in history versus the current uproar over Trump.
- “When President Eisenhower sent troops into Little Rock…the left called him a civil rights hero. When JFK sent troops to ensure Black students could enroll… the left cheered him on… When Trump threatens to use the Insurrection Act, the left calls him a fascist dictator.” ([15:05])
Addresses January 6th, noting that the Insurrection Act wasn’t invoked because "law and order was already established by 8pm".
- “The law doesn’t work to benefit either political party. Neither the left nor the right gets to demand a law’s use in one case and then shriek fascism when it’s used in another similar case.” ([15:45])
Critiques what he sees as selective outrage and misuse of “defending democracy” rhetoric.

Looking Ahead: What Happens Next ([16:10–16:41])

Describes the situation as unsustainable: "If Minnesota continues to up the ante, the question becomes when, not if, the federal government will have to step in."
Concludes that the real issue is "whether or not Americans still believe in the rule of law at all."
- “A country that cannot enforce its own laws is not a country. It’s just a geographic area waiting to be conquered… If we do get to that point, the President has a clear legal and historical mandate to say, ‘No more.’” ([16:30])

Notable Quotes & Memorable Moments

On Minneapolis Today:
“Law enforcement as a source of chaos and protesters who obstruct the law as righteous dissidents. The results have been hideous.” – Ben Shapiro ([01:30])
On the Insurrection Act’s Origins:
“The Insurrection Act was explicitly not designed with an intent to crush peaceful protest… It was created to stop the upending of the American government altogether.” ([06:45])
On Presidential Authority:
“‘Whenever the President considers…’—that would be the President’s authority. There’s no clause indicating local or state consent.” ([12:50])
On Partisan Use and Hypocrisy:
“Neither the left nor the right gets to demand a law’s use in one case and then shriek fascism when it’s used in another, similar case… If your worldview flips depending on who’s president, you’re not defending democracy. You’re just playing for your partisan team.” ([15:45])
On the Stakes for the Country:
“A country that cannot enforce its own laws is not a country. It’s just a geographic area waiting to be conquered.” ([16:30])

Important Timestamps

01:05–03:45: Minneapolis crisis and active political defiance
03:45–08:15: History and original intent of the Insurrection Act
08:15–10:41: Examples from American history and bipartisan precedent
11:00–13:45: Legal mechanics, Section 251 vs. Section 252
13:45–15:05: Interplay with Posse Comitatus Act
15:05–15:55: Double standards, January 6 comments, and hypocrisy
16:10–16:41: Prognosis and warning about the American rule of law

Summary Flow & Tone

Ben Shapiro’s tone throughout is forceful, direct, and unsparing—characterized by a detailed, methodical march through legal history and statute. He repeatedly uses rhetorical questions and historical analogies to underscore his central argument: invoking the Insurrection Act in response to active state-level resistance to federal authority is both lawful and historically routine. Shapiro strongly critiques what he views as left-wing hypocrisy and partisanship, closing with a warning about the consequences of ignoring constitutional mechanisms.

This episode provides listeners with a thorough, history-grounded argument for the legitimacy (and perhaps necessity) of presidential intervention under the Insurrection Act, especially in environments of open resistance to federal law.

Transcript

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Minnesota Governor Tim Walls, Attorney General Keith Ellison and Minneapolis Mayor Jaco Fry are now casting federal agents as the enemy. Law enforcement as a source of chaos and protesters who obstruct the law as righteous dissidents. The results have been hideous. Roving groups of agitators attempting to obstruct federal law enforcement, acts of violence against ICE and Border Patrol, and the tragic deaths of two American citizens in confrontations with federal law enforcement. Renee Good and Alex Preddy. All of which has now escalated even further into more confrontations with federal agents. A coordinated network of activists attempting to block ice's every move. In Minneapolis, a party wide push to abolish ICE altogether And the usual cast of radical left characters freaking out that Immigration and Customs Enforcement is literally white supremacy or the peaceful churchgoers are somehow an affront to your civil rights. This is a left wing chaos operation, and it could work because they're hoping you won't know the history, that they can recast the enforcement of the law as a unique evil wrought by President Trump. That you'll believe them when they decry President Trump as a dictator. And the fact that we're seeing so much chaos out of Minneapolis time and time again and not out of other American cities or in red states is not an accident. Which is why President Trump should use the Insurrection act in Minneapolis. If widespread resistance to federal law enforcement continues, we're going to take you through every scenario. The history, the law, the potential applications from the Founding Fathers to a section by section breakdown of existing American law, to the precedents set by Presidents Lincoln, Grant, jfk, and more. So should more stupidity abound from Minnesota's political leadership, you'll be armed with the fact. Welcome back. The Insurrection act is not new. It's not even all that unusual. It's a foundational safeguard passed by Congress in the very early days of the American republic to preserve federal authority. Let's wind back the clock. The year is 1807. The President is Thomas Jefferson. Now, the modern left has kind of a complicated relationship with Jefferson. They tear down his statues because he was a slaveholder, but they do love to quote him about a little rebellion now and then. Being a good Thomas Jefferson in 1807, however, was not interested in rebellion. He was interested in the survival of the republic. At a time when America was surrounded by enemies. Europe was occupied by the Napoleonic Wars. The British were harassing American ships on the high seas. The Louisiana Territory, freshly purchased just five years earlier, was basically a lawless frontier. In the grand scheme of things, the command of Washington D.C. was weak. Enter Aaron Burr. Now, you know him as the guy who shot Alexander Hamilton in a duel. But Burr's real villainy came years later when he began plotting an armed rebel against the United States, conspiring with General James Wilkinson, the head of the US army at the time, who was later found to be on the payroll of the Spaniards, Burr planned to raise a militia to seize parts of the western frontier and form a breakaway republic. The episode, coined the Burr Conspiracy, is nothing short of cinematic. The former Vice President of the United States allegedly planning to form his own empire in the Mississippi Valley. The threat was existential. So as President Jefferson received reports, intimations he called them that unlawful designs were an agitation in the western country. And he realized the existing laws would be insufficient to stop the rebellion. Even as a staunch believer in limiting government, Jefferson knew that if Burr succeeded, the United States would fracture. In order to circumvent the seditious militias in the western states, Jefferson called upon congress to pass the legislation he would need. The US President needed the ability to command the standing army of the United States against American citizens on American soil. The Insurrection act passed in March 1807 with clear language, quote, that in all cases of insurrection or obstruction to the laws, either of the United States or of any individual state or territory, where it is lawful for the president of the United States to call forth the militia for the purpose of suppressing such insurrection or of causing the laws to be duly executed, it shall be lawful for him to employ for the same purposes such part of the land or naval force of the United States as shall be judged necessary. The insurrection act was explicitly not designed with an intent to crush peaceful protest. It wasn't designed to stop people from writing mean op EDS about the president. It was created to stop the upending of the American government altogether. The federal government, however, begrudgingly, must be able to preserve its own authority at the end of the day. Sound familiar? Aaron Burr wanted to carve out a territory where the laws of the United States didn't apply. What is a sanctuary state in practice? It's not just a place that refuses to do the work of federal law enforcement. In Minnesota, it has become a place that actively encourages the obstruction of federal law. When Tim Wall says, quote, ice has no business here, he is echoing those who thought the western territories should be free of Jefferson's control. When a mob surrounds a federal building and prevents agents from leaving, they are dangerously challenging the sovereignty of the American government. In 1807, Thomas Jefferson didn't hesitate. He signed the law, deployed the military, and Aaron Burr was arrested and tried for treason. You might also note the United States remains one continuous country today. Now the media will say that was 200 years ago. It's archaic. It's never been used. That is not true. Since 1807, the Insurrection act has been used over 30 times by presidents from both sides of the aisle, including Andrew Jackson in 1831 to resolve a border dispute, Lincoln in 1861 to fight the civil war, and Ulysses S. Grant, who used it no less than 10 times during Reconstruction to fight the KKK. Was Ulysses S. Grant a fascist for using the military to crush the KKK and protect the rights of black Americans? Was Abraham Lincoln a tyrant for using the Insurrection act to stop the Confederacy? Of course not. They were enforcing the law. They were ensuring the US Federal government maintained its authority. Grover Cleveland used the Insurrection act in 1894 to break up the Pullman strike and restore railroad operation. FDR used it to quell the Detroit race riot. Eisenhower used it to enforce school integration in Little Rock, Arkansas. JFK used it to protect black students in Mississippi and Alabama. LBJ used it to stop violence three times in 1968 alone. The last time the Insurrection act was invoked was 1992, when George H.W. bush sent in the Marines to quell the Rodney King riots in la. So when President Trump says he reserves the right to do the same, he's not pulling a rabbit out of a hat. He's reaching for a tool that sits on the top shelf of the presidential toolbox, right next to the veto and the pardon. It's a heavy tool, but it is a lawful tool. Getting a wide variety of whole food ingredients into my diet. That's a big priority for me this year, especially with constant work travel. Our sponsor, Balance of Nature's Whole Health System, makes it simple. 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It's a simple way to give your body the nutrition it needs every day. I'm on the road and you know I'm out and about with the kids. It's kind of cold outside. Let's be real. Normally I'd get sick. Balance of Nature is helping make sure that doesn't happen. This New year's Lock in 50 offer one year when you subscribe to the Whole health system supplements as a preferred customer. Head on over to balanceofnature.com the next objection you'll hear is that President Trump can't invoke the Insurrection act unless the governor of a state asks for help. That's wrong. It's legally illiterate, repeated ad nauseam by our Blue Check commentariat. This argument is a conflation of two different parts of the Insurrection Act, Sections 251 and 252. Each section represents a different path toward the invocation of the Insurrection Act. Let's start with section 251. That's the one the left likes to cite. It's also known as the Cooperative model, and it reads, quote, unquote, Whenever there's an insurrection in any state against its government, the President may, upon the request of its legislature or of its governor, call into federal service such of the militia. The keywords here are upon the request in this scenario, the state government can ask for help. The government responds. Like the 1992 Rodney King riots, for example. Louisiana is burning. The LAPD is overwhelmed. Governor Pete Wilson realizes he's lost control. So he writes to President Bush and asks for help. And Bush responds and troops arrive and order is restored. That's section 251. The state in that scenario cries uncle and calls in the feds. That's not what we're seeing in Minnesota right now. The problem is Tim Walz thinks there is no problem. He's acting in defiance of federal authority. And that brings us to section 252, also known as the Hammer Clause. Tim Walls would do well to read this one more carefully. Quote. 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. Let's break that down line by line for the situation in Minnesota right now. So section 252 begins, quote, whenever the President considers that would be the President's authority. There's no clause indicating local or state consent. It continues, quote, unlawful obstructions, combinations or assemblages. You mean, say, mobs surrounding federal buildings or attacking federal agents with deadly or improvised weapons or forming human chains to block arrests. That would be textbook obstruction. The clause specifically indicates these acts must be, quote, against the authority of the United States immigration agents are federal officers. They carry the badge of the United States. Interfering with them is quite literally interfering with Federal Authority. Section 252 also specifies it must become impracticable to enforce the laws by ordinary course of judicial proceedings. That part is key. What happens when Minnesota PD stands back? When rioters aren't arrested because Tim Walls says they're peaceful? If federal agents can't leave the building to make arrests or serve warrants, the legal system has broken down. Law and order have collapsed. Now, if those conditions are met, the President doesn't just have the right to act, he arguably has the duty to act. The Constitution requires him to take care that the laws be faithfully executed. If he allows a mob to nullify federal law in Minneapolis, he's failing in his constitutional duty. Beware those who say these are mere technicalities. The Insurrection act is crystal clear. Section 251 says we need backup. Section 252 says get out of the way now. An Ms. Now anchor or a TikTok professor might throw up one more legal hurdle here. It's ultimately a red herring. It's called the Posse Comitatus Act. The statute itself was passed in 1878 in the aftermath of Reconstruction and it reads, whoever, except in cases and under circumstances expressly authorized by the Constitution or act of Congress willfully uses any part of the army or air force as a posse comitatus or otherwise to execute the laws shall be fined. In other words, the Posse Comitatus act strictly prevents rogue actors from turning the military into a personal police force unless or until Congress authorizes action. It was designed to curb the long term use of the U.S. army to enforce civilian law in the South. But even then, Congress left the door wide open for future exceptions. This is not a blanket ban on the use of the military on American soil. It also doesn't override the President's constitutional duty. In fact, the Posse Comitatus act has a built in eject button, a cause specifically carving out circumstances expressly authorized by an act of Congress. That would be like the Insurrection Act. Posse Comitatus and the Insurrection act are not in conflict. They are statutes designed to work in sequence. Here's how it works. In practice. A crisis erupts, Rioters obstruct the enforcement of federal law. Next, local authorities stop doing their job or side with the mob. After that, the President invokes the Insurrection act through either the cooperation clause or the hammer clause. At this point, posse no longer applies. The Insurrection act has been wielded. The military then steps in and takes action to bring back law and order. When Tim Wall says ICE agents are unwelcome invaders, or that ICE is Trump's secret police force, he's not exercising any sort of state right. He's not protecting the people of Minnesota. He's lighting a constitutional fuse that the Insurrection act was specifically designed to extinguish. So let's get one thing straight. When President Eisenhower sent troops into Little Rock to enforce Brown versus Board, the left called him a civil rights hero. When JFK sent troops to ensure black students could enroll at Ole Miss, the left cheered him on. When LBJ sent troops to suppress race riots three times in the same year, left said he was protecting democracy. When President Trump threatens to use the Insurrection act, the left calls him a fascist dictator who is conspiring to destroy our republic. Give me a break. Now, the height of this irony is January 6th. If there ever was a moment when the left was salivating for the Insurrection act to be invoked, it was January six. Now, don't get me wrong, the breach of the Capitol building that day was very not good. But while Trump authorized the use of the National Guard before the rally on January 6th on them, all DC leadership declined the support regardless. When the Capitol was breached, Capitol Police regained control within just a few hours. Trump didn't need the Insurrection act on that day. Law and order was already established by 8pm that night. Instead of acknowledging that fact, Democrats then moved to redefine the insurrection act after J6. To make it even harder for the president to deploy the military domestically, the left wanted to retroactively claim that Trump was trying to commit sedition himself and was going to launch some sort of coup. Courts and Congress have since litigated this out, and Trump's indictments have all either been delayed, dismissed, or acquitted. The law doesn't work to benefit of either political party. Neither the left nor the right gets to demand a law's use in one case and then shriek fascism when it's used in another, similar case. You either believe in our constitutional republic with enforceable laws or you believe in mob rule masquerading as resistance. If your worldview flips depending on who's president, you're not defending democracy. You're just playing for your partisan team. So what happens next? There's no question federal agents are dealing with an incredible amount of obstruction. In Minneapolis, ICE vehicles are routinely surrounded and vandalized. And now two people have been killed. The people who are supposed to maintain order, Governor Tim Walls, Attorney General Ellison, Mayor Fry, have been nothing short of defiant. If Minnesota continues to up the ante, the question becomes when, not if, the federal government will have to step in. Meanwhile, both President Trump and Vice President Vance have simply encouraged Minnesotans to do the right thing. But history is watching. From Thomas Jefferson To George H.W. bush, presidents have wielded the Insurrection act without hesitation in order to preserve American liberty. Under the American system, the Constitution and federal statutes are not merely a set of suggestions. They are the supreme law of land. And when governors abdicate their own mandate to maintain order, the Insurrection act becomes the last firewall between order and in many ways, the moment is not about ICE or even about President Trump. It's about whether or not Americans still believe in the rule of law at all. If one political party or one state can effectively nullify entire swathes of the federal government, we don't really have a country at all. Entire portions of the United States of America could theoretically be conquered by partisan mobs. A country that cannot enforce its own laws is not a country. It's just a geographic area waiting to be conquered. At the same time, nobody wants to see anyone else get hurt. The cycle of harassing federal agents, tragedy, rioting. It's gotta stop. I know. No American wants to see our country fracture. America won't enter a civil war over the enforcement of basic immigration law. But if we do get to that point, the president has a clear legal and historical mandate to say no more. Those are the facts.