The Most Dangerous Course of Action
Invocation of the Insurrection Act may no longer be imminent, but its use is still likely and is a significant threat to our Republic
Given that this is a long article, and I do not want this point lost, I am going to begin with a plea. Last month, I wrote to my Congresswoman requesting that she sponsor legislation to repeal or significantly amend the Insurrection Act of 1807. I request that you do the same. If you would like a copy of the letter I sent to use as a template, you can find that here.
If you do not believe that the Insurrection Act gives the President too much power, then I encourage you to read on as I am hopeful I will make the case to you that invoking the Act is problematic for any administration, but there are unique features of this administration that are especially concerning when it comes to the potential ways they may use the Act to enable our military to directly conduct immigration enforcement and public safety missions.
I am not, by nature, an alarmist, but when I consider all the possible actions the Trump administration could take to further its authoritarian project, the invocation of the Insurrection Act ranks highest on that list. I am going to offer a set of observations, propose a thesis based on those observations, and then provide you with my supporting evidence for my expectation that the Trump administration will invoke the Insurrection Act at some point; that it will be at a scope, scale, and duration beyond what previous Presidents have done; and that its use will be highly dangerous to the health of our Republic, its people, and its military given the views of President Trump, Secretary of Defense Hegseth, and the context the administration has created around the use of the act.
I developed this thesis based on my experience as a retired Naval Intelligence Officer and a national security professional with over 40 years of experience. As an intelligence officer, we are taught to assess adversary courses of action, and at a minimum, an intelligence officer is required to provide their commander the most probable and most dangerous course of action (COAs) an adversary may take.1 In some cases, the most probable and the most dangerous may be the same. While the administration is not an adversary, I applied the same process to assess the administration’s potential use of the Insurrection Act. Once again, I do not want to engage in fear-mongering, but when I considered the uniqueness of this administration, the actions it has taken to date, and the views of its senior leaders, I think there is a convincing case to be made as to why the invocation of the Insurrection Act by this administration would present significant dangers to our Republic.
For those who want a summary of my argument, I have provided a graphic, Figure 1, that summarizes the main points and flow of my analysis.
Observations
The Trump administration has publicly elevated immigration enforcement and public safety as major Department of Defense (DoD) responsibilities without any of the analysis and debate that would normally accompany such a major change in direction for DoD.
While my assumption is that these responsibilities are really the “support to” responsibilities that DoD has traditionally conducted in support of other federal agencies, like the Department of Homeland Security (DHS), use of the Insurrection Act would enable the administration to use National Guard and active-duty forces to directly secure the border, round up illegal immigrants, and quell public unrest.
Immigration enforcement and public safety are not core DoD missions – there is no deep well of historical practice, policy, doctrine, training, or exercises that DoD can draw from to conduct those missions directly.
President Trump, during his first administration, wanted to invoke the Insurrection Act to deal with Black Lives Matter (BLM) protestors and at one point told senior advisors he wanted military members to “shoot protestors in the legs.” President Trump was dissuaded from every invoking the act in his first term.
President Trump, during the campaign, talked about using the military against the “enemies from within,” by which he meant U.S. citizens to include political opponents, media figures, election officers, and other groups.
Secretary of Defense (SecDef) Hegseth has written and spoken about the need to divest the military of Diversity, Equity, and Inclusion (DEI), reclaim a “warrior ethos” within the ranks, focus on “lethality, lethality, lethality” above all else, and to create a force, like our enemies, that is not bound by laws of armed conflict in the pursuit of mission success.
President Trump has pardoned convicted war criminals and those who have committed political violence on his behalf. SecDef Hegseth advocated for the pardoning of those war criminals and believes troops at the lowest tactical level should be unfettered to do what warriors need to do. He states that he will “have their backs” if they violate rules of war and rules of engagement (ROE) in the pursuit of victory.
As many have observed and believe, the administration is engaged in a multipronged assault on the Constitution and the Republic in an effort to impose a more authoritarian system of government in the United States, and they are conducting this campaign with an acquiescent Congress and other institutions that are enabling or justifying their activities.
Part of this authoritarian project is the scapegoating of immigrants, particularly illegal immigrants, and the administration has set a goal of up to 1 million deportations a year, a goal that would take many months, if not years, to reach using DHS alone, even if DHS receives the massive infusions of resources that Congress and the administration want DHS to receive. Authorizing funding is the first step; building capacity takes a significant amount of time.
Many elements of the authoritarian project are causing popular unrest and that unrest is likely to rise as political and economic conditions deteriorate.
Of all the acts in furtherance of the authoritarian project, the most troubling, from the perspective of invoking the Insurrection Act, is the firing of senior officers, to include Judge Advocate General (JAG) Corps officers who help commanders to set boundaries for the use of force based on the requirements of the mission. The replacement of these officers by loyalists or partisans would potentially enable the disregard for laws of war and military conduct that President and SecDef Hegseth believe needs to occur to unleash the warrior spirit of our military.
Thesis
Given the observations above, the administration is likely to invoke the Insurrection Act, most likely to first add capacity to DHS for directly securing the border and rounding up immigrants given the President and others in the administration will likely grow impatient with the length of time it will take DHS to add the capacity it needs to meet administration goals. As popular protests grow, the focus of the Insurrection Act will shift to public safety. Both the immigration enforcement and public safety missions require extraordinary restraint because both will involve encounters with U.S. citizens. Using a military that is told by its leadership that “lethality” and “warrior ethos” are its highest values and that if they commit war crimes, they will be given the benefit of the doubt, there is a high potential that invoking the Insurrection Act will result in injuries or loss of life that will greatly damage the American people, our military, our military’s readiness, and our Republic.
My argument
To make my case, I will do the following:
- Provide a brief explanation of the Insurrection Act to orient readers who may not be familiar with it.
- Give my evidence for why I think the invocation of the Insurrection Act is not only likely, but practically inevitable.
- Talk about why the Insurrection Act is so concerning when viewed within the context of other authoritarian moves by the administration and when the views of the President and senior administration officials are considered.
- Outline the dangers of this administration using the act.
The Insurrection Act
This will just be a brief overview of the Insurrection Act to orient those who may not be familiar with it or need a refresher. The sources at the end of this article include links to several resources on the Insurrection Act, including an excellent series by the Brennan Center for Justice, but I will just present the broad strokes here. Given their study of history, our founding generation justifiably had many concerns about the safety of our Republic and passed the Insurrection Act in 1807 to give the President the authorities needed to respond to extreme crises domestically using military forces. In 1878, with the end of Reconstruction, Congress sought to limit the power of the President to deploy military forces domestically and passed the Posse Comitatus Act. This restricts the military from engaging in law enforcement within the United States unless expressly authorized to do so by Congress or through the Insurrection Act.
There are three specific cases for invoking the Insurrection Act. They are:
- An insurrection in a State, whereupon the legislature or governor of that state can ask the President for military aid to suppress the insurrection.
- If the President determines there is a rebellion or other “unlawful obstructions, combinations, or assemblages” that “make it impracticable to enforce the laws of the United States.
- There is an insurrection or other activity that deprives people of Constitutional rights or impedes the course of justice under U.S. laws.
Some points about the Act to bear in mind from the Brennan Center for Justice:
- In the cases above, only the first requires a state’s permission. In the other two cases, the President can act without a state’s approval.
- None of the important terms in the Insurrection Act are defined – such as rebellion and insurrection. It is wholly at the President’s discretion to determine whether the criteria for invoking the act have been met.
- While the imposition of the Insurrection Act cannot be challenged in court, violations of law by military members acting under the Insurrection Act are subject to prosecution and judicial review.
- The Insurrection Act is not “martial law.” Even though Lincoln declared martial law in certain areas during the Civil War, there is no provision for martial law in U.S. law. If it did exist, martial law would mean the military becomes the civilian government in the area under martial law. Under the Insurrection Act, the military acts in a support role to civilian government entities, such as law enforcement or Immigrations and Customs Enforcement (ICE), but can also directly engage in law enforcement activities while in support.
Invocation of the Insurrection Act Seems Inevitable
There are many reasons why the Insurrection Act is likely to be invoked during this administration and why its initial application will likely address the perceived crisis at the southern border. Those reasons include Presidential Executive Orders, moves the Department of Defense (DoD) is making that signal a more sustained DoD mission around border security and immigration enforcement, the time it will take DHS to scale up to implement the administration’s deportation goals, and President Trump’s frustrated desire to invoke the act during his first term.
For many weeks I anticipated the Insurrection Act would be invoked for border security on the recommendation of the SecDef and DHS Secretary. The reason why is because on his first day in office, President Trump signed an Executive Order (EO) titled “Declaring a National Emergency at the Southern Border of the United States” Among other things, this EO directed the SecDef and DHS Secretary to submit a joint report by April 20, 2025 with recommended actions “necessary to obtain complete operational control of the southern border, including whether to invoke the Insurrection Act of 1807.” A subsequent EO, signed that same day and titled “Clarifying the Military’s Role in Protecting the Territorial Integrity of the United States,” directs the military to “prioritize the protection of the sovereignty and territorial integrity of the United States along our national borders” and directs U.S. Northern Command “the mission to seal the borders and maintain the sovereignty, territorial integrity, and security of the United States by repelling forms of invasion including unlawful mass migration, narcotics trafficking, human smuggling and trafficking, and other criminal activities.”
Since the passage of these two EOs, a number of actions have occurred, including direct military support for border security, counter-human and drug trafficking, and immigration enforcement activities, as well as preparations for an expansion of the military’s role in those efforts. These activities include:
SecDef Hegseth, has publicly committed to “Whatever is needed at the border will be provided” to achieve “100% operational control of the border.”
SecDef has made the DoD’s “immigration enforcement” and “public safety” responsibilities priorities for the Department of Defense, despite the fact the DoD has no direct immigration enforcement or public safety responsibilities, although it does play a support role to DHS and other agencies when directed to do so.
U.S. Northern Command (USNORTHCOM) is now focused on supporting the Department of Homeland Security (DHS) by providing “mission-enhancing capabilities” to secure the border and stop the flow of human trafficking, illegal drugs, contraband, criminals, and illegal immigrants into the country.
Business Insider provides a good compilation of direct military support activities to date
Deployment of two (now three) U.S. destroyers off the western and eastern coasts of Mexico to surveil the area and support Coast Guard Law Enforcement operations.
Approximately 6,700 active-duty and 2,500 National Guard troops deployed to the border to conduct monitoring and other support roles that free up Customs and Border Patrol (CBP) and other law enforcement to apprehend illegal migrants and traffickers.
Use of military aircraft for deportations, though these have since been curtailed when reports circulated that using military aircraft for this purpose was over 3 times as expensive as using civilian flights.
Military surveillance aircraft and drones to monitor the border areas.
Military armored vehicles, such as the Styker, which are used to patrol border areas, monitor the situation, and intimidate potential border crossers.
Cost estimates for these activities are approximately $5 million a day or over $375 million since January 20th.
SecDef has authorized the construction of a migrant detention center on a 60-acre stretch of Fort Bliss, a West Texas Army base that also stretches into New Mexico.
The President has authorized the U.S. military to take control of federal land at the southern border. This was done to give the military a more direct role in border enforcement. Since these lands effectively become a “military base,” the military can detain people, including illegal immigrants, who are on this territory. The military can also build border barriers and install sensors for monitoring the area.
Given the above, I thought it was practically inevitable that both the SecDef and the DHS Director would recommend to the President that he invoke the Insurrection Act to give DoD greater latitude in conducting its border security and immigration enforcement responsibilities. Recent press reports indicate that these two cabinet secretaries will advise the President to refrain from invoking the Insurrection Act given the significant progress that has been made in establishing “operational control” of the border (which I discuss below). Had the two Secretaries recommended invoking the act, and had the President done so, it would have allowed military personnel to participate in immigration enforcement activities along the southern border directly, and I suspect it would have also provided authorities for the military to take a more direct role in deportation operations throughout the country.
DHS is under-resourced to fulfill its border security and immigration enforcement functions, so the administration’s move to augment DHS with DoD support makes a lot of sense. As shown in Figure 2, border encounters in March 2025 dropped to just over 11,000, a 94% decrease from their level a year ago. While it is difficult to quantitatively measure how much of that decrease is due to DoD support, especially given a recent DHS press release2 talking about the “bold, decisive action to restore control at the border” taken by the administration does not even mention the DoD, it is obvious that DoD support has “freed CBP agents for interdiction” and contributed to the significant decline in the number of border encounters and has contributed to this reduction in encounters.
Even though Secretaries Hegseth and Noem are against invoking the Insurrection Act now, I still believe it is likely the act will ultimately be invoked to give DoD a greater role in border security and to help DHS meet its deportation goals of up to 1 million migrants a year. An article by Axios discusses the many things standing in the way of that goal, including detention space needed to house migrants pending deportation; messaging that has made the migrant population weary and cautious; staffing for Immigration and Customs Enforcement (ICE )and other agencies involved in immigration enforcement and border security; and backlogged courts. All of these issues will take time to resolve, but as shown by the use of DoD to build temporary migrant detention facilities, and the tremendous capacity resident in National Guard and active duty units for direct immigration enforcement operations in collaboration with or under the overight of ICE, DoD offers a way for the administration to ramp up immigration enforcement operations until DHS receives the funding and makes the investments needed to grow its capacity, which will take months if not years to achieve.
Invoking the Insurrection Act would give the administration the authority to use the military this way, and no strong pretext is needed. Just as President Trump declared national emergencies for energy and the economy, even though the United States is the largest producer of energy and has the strongest economy on the planet, he will no doubt find justification for invoking the Insurrection Act should that be his desire.
Justification becomes more relevant, though, if the administration’s invocation of the Insurrection Act leads to active duty and National Guard troops participating in detainment and deportation operations throughout the United States. Placing desolate federal lands under military control so that the military can more directly participate in border encounters by detaining those who stray on these new “bases” is one thing. The sight of uniformed soldiers, sailors, airmen, and Marines on the streets of major U.S. cities or in rural areas conducting patrols and rounding up suspected illegal aliens or directly supporting DHS units and agents conducting these operations is something many Americans will likely find disturbing, especially if those encounters also involve U.S. citizens seeking to shelter migrants or frustrating enforcement operations.
Potential Flash Points That Could Expand the Use of the Insurrection Act
If the Insurrection Act is invoked to address border security issues, how likely is it that use of the act will be expanded to give DoD more of a role in public safety? For those who think this is an academic question, I do not. I believe things learned from both Trump administrations make it likely that President Trump seeks to use the military in a public safety role. I also believe that many of the actions taken by the administration to further its autocratic project could ultimately stir up enough social unrest to act as a trigger or a pretext to invoke the Insurrection Act to “restore order,” although it is far more likely those authorities will be used to quell dissent against administration policies. These potential flash points could be triggered by any number of the administration’s actions, especially the ones that will have deleterious impacts on the polity and economy over the coming months.
President Trump and the Insurrection Act
Enough credible press reporting about the first Trump administration demonstrates that President Trump had a desire to invoke the Insurrection Act at various points in his term, but most famously during the protests occurring throughout the nation over the murder of George Floyd by police in Minneapolis. The most infamous moment came on June 1st, 2020 during the protests in Washington, DC, when President Trump wanted to invoke the Insurrection Act to clear protesters and asked his senior advisors, “Can’t you just shoot them [the protesters]? Just shoot them in the legs or something?” The President was dissuaded from invoking the act by then-Defense Secretary Mark Esper and former Joint Chiefs Chairman Mark Milley. Most accounts state that the opposition from both men, and General Milley especially, was very strident. President Trump was also interested in invoking the act to quell protests in other cities as well, but was dissuaded each time because both Esper and Milley did not think the circumstances were sufficiently dire to warrant the use of military force on U.S. soil.
On the campaign trail during the 2024 election, President Trump made major news when he talked about using the military on “enemies from within,” by which he meant political opponents, media figures, election officials, and other groups, while also including specific individuals such as Senator Adam Schiff and Congresswoman Nancy Pelosi. Recently, in an Oval Office visit with El Salvador’s President Bukele, President Trump stated that he is interested in having El Salvador build more prisons so that he could ship “homegrown” U.S. criminals (otherwise known as U.S. citizens) to foreign countries for incarceration.
While the last point would not specifically require the U.S. military, when coupled with President Trump’s previous statements about using the military to round up “enemies from within,” and the fact that U.S. military assets are used to support deportation operations now, it is not an implausible leap to consider the possibility that President Trump would not only arrest “enemies from within” using military personnel, but that he would also use the military to take them to foreign prisons so that he could then argue that he is “powerless” to obtain their release. Whether the courts would ever allow President Trump to do this is beside the point, because he has already proven his willingness to employ this tactic with immigrants, and the intimidation factor that he “might” use this tactic has a political value all its own. Citizens who may be rounded up by this method, even if they are ultimately exonerated, will face reputational and financial damage when they try to fight against illegal and unconstitutional moves by the administration.
Potential Flash Points
The administration’s assault on norms, laws, and the Constitution itself has been breathtaking. Many, even those who closely track the news and politics, have had difficulty keeping track of the administration’s actions, their status and impacts, and how they all fit together. While Project 2025 serves as something of a guide to the administration’s actions, many things, like the remanding of migrants to foreign prisons and the talk of Canada’s annexation, are nowhere mentioned in Project 2025, nor were they discussed on the campaign trail or found in President Trump’s Agenda 47 or the Republican Party Platform.3
Some individuals and organizations have tried to aggregate either the totality of the administration’s actions or to bundle up data about certain aspects of their actions into a tracker for reference. Some of the best trackers for all the legal challenges to Trump administration actions include Lawfare, which does a near-weekly review of the status of major judicial proceedings involving the administration, and the Associated Press (AP), which maintains an outstanding tracker of all the lawsuits against President Trump’s executive actions as well as a summary chart showing the status of those court battles. Just Security also maintains an extensive tracker that is routinely updated and sourced. For a more expansive view of the administration’s actions, the venerable British newspaper, The Guardian, has maintained a webpage that compiles all the major news of the Trump administration’s first hundred days in an easily digestible format.
While all these compilations are worthwhile efforts, the most comprehensive and persuasive tracker of the Trump administration’s authoritarian project is that developed and maintained by
, who is currently a Professor of Operational Research at University College London. Professor Pagel has done a masterful job applying her skills in creating a tracker and a Venn Diagram that complement her outstanding analysis of 192 administration actions and how 69 of those actions fit within a framework that clearly shows the assault on democracy that the administration is undertaking. Informed by the work of scholars of authoritarianism, such as , Professor Pagel has done a great public service by mapping administration actions into five categories, shown in Figure 3.By grouping these actions and showing their overlaps, even a casual observer can make sense of how these seemingly disparate actions are pieces of an overarching plan, like the ones used to successfully overturn and subvert democracy in countries like Hungary, Turkey, Venezuela, and Russia. Much of Professor Pagel’s analysis complements not only the important work of Tim Snyder and reporters like
and publications such as The Atlantic and The Bulwark, but it also dovetails well with the work done by Protect Democracy, which has produced a number of important resources, such as The Authoritarian Playbook for 2025, that also help to provide context to assist with understanding the threats posed by current and potential Trump administration threats to our Republic and its Constitution.
Unlike many of the countries that have turned authoritarian in the last 20-30 years, the United States has deep democratic roots. So many of these administration actions have resulted not only in court challenges but in protests that show the public’s resistance to the assault on norms, laws, and the Constitution that are intended to undermine democracy in the United States. To date, those protests have been peaceful and are meant to pressure both the administration and its supporters in Congress to turn away from specific actions that either threaten democracy directly or which could lead to situations, such as a significant economic downturn or moves to implement the administration’s neo-imperialist agenda, that would cause the administration to claim even more emergency powers, expand the circle of scapegoated classes of people and individuals, and further erode the power of Congress and the Courts.
Given the growing dissatisfaction over administration policies, there are several potential flash points that these policies could create or exacerbate that might result in more widespread or forceful protests that the administration could use as a pretext for invoking the Insurrection Act, leading to the use of the military in a public safety role. Some of those potential flashpoints include:
Heavy-handed Immigration Enforcement: While it remains a possibility that the military could be used for more direct immigration enforcement operations, there is still much the administration can do with aggressive deportations and gathering illegal migrants into camps that would repulse and anger a good percentage of American citizens. If aggressive enforcement operations and other pressures are brought to bear against sanctuary cities, which are largely populated and led by Democrats, this may set the conditions for more assertive and prolonged protests and citizen assistance to targeted populations that could result in the use of military force.
Suppression of Free Speech and Attacks on Institutions: This can take many forms, but as Professor Pagel and may others have pointed out, this administration has weaponized government to conduct attacks on the press, universities, law firms, other institutions, and even individuals as a way to compel compliance with administration objectives or to suppress speech that the administration does not like or which threatens their authoritarian project. Given the value most Americans place on their right to free speech, moves by the administration to target speech and institutions have been met with court challenges and peaceful protests but if court challenges fail, or drag out for extended periods in ways that allow the administration to still inflict damage, it is likely that protest activity around these threats to democracy will increase in scale and intensity.
Deteriorating Economy: President Trump made many promises during his campaign about the economy, about which he has since either backtracked or changed the narrative. Whereas previously the President declared Americans would see lower prices and inflation immediately, his narrative has shifted to one in which America will need to experience an undefined amount of short-term economic pain to achieve a “golden age” of American prosperity that will occur at some unspecified point in the future. The tariff debacle; the deteriorating relationships with close allies and trading partners; the economic uncertainty introduced by the administration's economic, foreign, and domestic policies; and projections of lower growth and higher inflation that many think will lead to a recession are all factors that could turn many against the administration, to include many who voted for President Trump and other Republicans because they believed President Trump’s promises of lower prices, lower inflation, and greater growth. A serious economic downturn could result in widespread protests, which the administration may feel compelled to address with military force, especially if they believe there is no quick fix to restoring the economy that they derailed through their own policies.
Government Ineffectiveness: From the illegal and unconstitutional impoundment of funds; to the firings and decimation of the federal workforce; and the shuttering of important government functions, such as international aid and the funding of scientific, especially medical, research; the administration seems intent on destroying government institutions or making them so ineffective it provides justification for eliminating them. Many theories have been offered as to why the administration is doing this, which include privatization of government functions; reduction of government expenditures to fund tax cuts; eliminating oversight to enable corruption and oligarchy; strengthening the unitary Executive; fulfilling a campaign of retribution for the President and his supporters; or some combination of these and other reasons. Regardless of why the administration is doing this, with a subservient Congress’s acquiescence, the result is that the government will either be ineffective at or incapable of providing services that the public has come to expect and rely on. This could include disruptions in the Social Security system, ineffectively managed health crises, the inability to effectively respond to natural disasters, and many other negative potential incidents that the public will blame on the administration's policies. These may result in localized or national-level protests, depending on the scale of the dysfunction caused by the administration, which may result in increasingly strident protests that would precipitate the use of the military to quell dissent.
Openly Defying Court Orders: Many have observed that the Trump administration has likely already crossed this line and can cite incidents that they say show the Trump administration either slow-rolling courts or delaying compliance with their orders. They also cite statements made by Trump officials, such as Press Secretary Karoline Leavitt, who erroneously argued that it was absurd that low-level district court judges could file an injunction to “usurp” the power of the President. Others contend that absent some declarative statement by the President or a high-ranking administration official that amounts to the (likely) apocryphal statement by President Jackson that “[Chief Justice] John Marshall has made his decision, now let him enforce it,” that the administration’s rhetoric and posturing outside of the courtroom is merely for political purposes and does not constitute a true Constitutional crisis. If such an open defiance does occur, though, it would place the United States in truly unchartered waters, and if the Republican majority in Congress chooses not to address the situation, there will likely be significant popular unrest given an Executive that does not abide by the rule of law is the very essence of a tyrannical regime.
These are by no means the only flash points. As shown by Professor Pagel’s diagram and her chart, there are any number of administration actions that could fuel public demonstrations and other forms of resistance, especially if the only check on the administration’s power, the courts, prove ineffective, or are perceived as ineffective, at blunting the administration’s assault on our Constitution and our values. We have seen a significant amount of damage done in the administration’s first 90 days and that damage has already elicited a tremendous response from the over 50% of Americans who did not vote for President Trump and those who now feel betrayed by his backtracking on core and oft-repeated campaign promises, especially about the economy.
What remains unknown is how big the reaction will grow over the course of the next 3 to 9 months, particularly when more of the effects of Trump’s impoundment actions and federal workforce cuts are felt. The pressure is likely to increasingly ramp up if Congress proves unable to produce a workable budget and if federal budget pressures are exacerbated by administration actions that significantly increase the servicing costs of the U.S. national debt, which will have ripple effects not only on the federal budget but also on the economy writ large. With more young people out of school and better weather ahead, it is likely that the protests that have already occurred around a number of issues, such as immigration, free speech, women's and marginalized people’s rights, and the economy, will only grow.
What will be the administration’s response to increased popular unrest? President Trump and the people he has filled his cabinet with have all demonstrated a penchant for not backing down when meeting resistance. President Trump’s desire to use the Insurrection Act to suppress popular unrest during his first term was frustrated, but unlike his first term he has surrounded himself with loyalists and like-minded cabinet members and staffers who, if press reports are to be believed, have primarily enabled his decisions during this second term rather than providing him with alternative courses of action that could have mitigated the worst impacts of the actions documented by Professor Pagel and so many others.
Given President Trump’s desire to use the military against “enemies from within” and the increasingly deteriorating political and economic situation, brought about directly by administration policies, I assess that use of the Insurrection Act to employ military forces in a public safety role to “keep the peace” is highly likely. It is also, disturbingly, extraordinarily fraught given a number of other concerning vectors tied to the administration’s policies and desire to transform our military in reaction to its perceived corruption by its adoption of DEI and “woke” policies during previous administrations.
The Troubling Context
I applaud the fact that SecDef Hegseth and DHS Director Noem wisely recommended to the President that the invocation of the Insurrection Act was not currently needed to address the situation at the southern border because measures implemented to date are having the desired effect. While I hope that remains the case, the administration is falling far short of its goal of deporting over 1 million illegal immigrants a year. That goal is not only unachievable with current DHS resources, but it is also likely that, unless more aggressive and widespread enforcement operations are conducted in the nation’s interior, deportation numbers per month will drop below the average. This is because deportation numbers include the “easy” deportations that come from deporting people caught illegally crossing the border. Since illegal crossings are markedly down due to the administration’s success with enforcement operations along the southern border, the only way to keep deportation numbers up is to go looking for people to deport.
The administration believes that Congress will provide the funds needed to make its mass deportation goals a reality, but even if Congress approved all the funds the administration is likely to ask for immigration enforcement, it will take considerable time to implement the administration’s plan given the budget will not go into effect until October 2025. In addition to building the facilities needed to accommodate those caught up in deportation sweeps, the administration also needs to onboard and train the personnel who will conduct these operations, and the immigration judges and other staff and supporting elements needed to conduct deportations legally. While the administration envisions expanded authorities to use local law enforcement to assist with immigration enforcement, it is likely that any moves in that direction will face court challenges, and the levels of compliance with such laws, even if they go into effect while being challenged, will vary depending on the locality.
Given how long it will take to bring DHS capacity up to the level needed to conduct routine mass deportations, and given the President’s apparent frustrations with the pace and scope of deportations to date, I still think it entirely plausible that the President will invoke the Insurrection Act so that National Guard and Active Duty troops can take a more direct role in immigration enforcement actions. By expanding DoD’s role, the President can take a short cut to the building of temporary facilities needed to house illegal immigrants awaiting deportation and the process to train military units to conduct immigration enforcement operations, especially if they are doing so under oversight from experienced DHS personnel, is a much swifter process than onboarding and training new personnel to fill those roles in DHS agencies involved with immigration enforcement.
So, while I believe we will likely see the invocation of the Insurrection Act to address border security and immigration issues first, that does not need to be the case. As discussed, there are plenty of other flashpoints for popular unrest that are driven by administration policies. Pressure will grow to suppress that unrest, especially if it becomes destructive in the way that some Black Lives Matter and George Floyd protests did. The administration would find violent or destructive protests valuable from a political perspective, as it would allow them to take the moral high ground and shift the focus of the conversation away from criticism of administration policies and steer it to the need to restore order.
While the Insurrection Act has been successfully used in the past, from the standpoint that it was invoked for a specific purpose and was withdrawn once the purpose was achieved, there are factors unique to this administration that cause me significant concern when I consider its use of the Insurrection Act. These factors include the President’s threats to use military force against citizens, his willingness to invoke emergency powers for specious reasons, and Congress’s servility to the Executive; the elevation of responsibilities for DoD that DoD is not postured or trained to perform at scale; the firing and replacement of senior military officers, especially Judge Advocate General (JAG) Corps officers; and the views of senior administration officials on “warrior ethos,” war crimes, and rules of engagement.
The President
Given that I have already discussed it extensively, I will not dwell on these points, but to establish the context in which the invocation of the Insurrection Act will occur, all of what follows here is worth revisiting. President Trump’s desire to invoke the Insurrection Act during his first term and use military force against civilian protestors is a considerable departure from previous Presidents, who used military force against American citizens as a last resort and put firm restraints on that use. President Trump, in declaring national energy and economic emergencies and in invoking the Alien Enemies Act, has also demonstrated a penchant during this term for seizing more power for the Executive on pretexts that seem specious or based on exceedingly thin grounds, so it is not improbable to conclude his invocation of the Insurrection Act will require little substantive justification.
While Congress could repeal or place limits on the Insurrection Act, the Republican majority in Congress is unlikely to do that. Even if they did, such an action would probably never have enough votes to pass after a Presidential veto. If the Insurrection Act is initially passed to aid with immigration enforcement, most Republicans and possibly even some Democrats would support the move, given that a tough immigration position is seen as a political winner for them. Given the subservience of Congressional Republicans to the President’s actions and policies, regardless of their Constitutionality or legitimacy, it is difficult to imagine a scenario where Congress would actively work to halt or set limits on the President’s use of the Insurrection Act, at least initially.
DoD’s Immigration Enforcement and Public Safety Responsibilities
There have been reports that the administration is interested in moving troops from Europe back to the United States to address its two largest national security priorities – China and the southern border. As mentioned previously, in guidance to the DoD issued earlier this year, the Secretary of Defense laid out highly restrictive hiring practices but stated that he would “consider exemptions for positions essential to immigration enforcement, national security, and public safety, and positions which support such functions.” The only problem with this statement is that immigration enforcement and public safety have never been core DoD missions. Yes, DoD has provided support to these missions, which are the responsibility of other federal agencies, and is doing so now in support of DHS, but the only way that these can become core responsibilities of the DoD, since they are domestically focused, is through the invocation of the Insurrection Act.
Some may argue that immigration enforcement and public safety responsibilities for DoD are an expansion of or analogous to DoD’s Civil Support mission. While there is a substantial and mature amount of DoD policy, doctrine, exercises, training, tactics, techniques, and procedures (TTPs) centered around Civil Support, especially for National Guard troops, these operations are primarily focused on domestic DoD response to natural disasters and other emergencies that exceed the capacity of local responders and other federal agencies to address. Immigration enforcement and public safety are different missions from Civil Support, and unlike Civil Support, there is little to no policy, doctrine, and training that would guide and prepare commanders at all levels and troops on the ground to conduct these missions, particularly if DoD were called upon to perform these missions for an extended period of time and at significant scale across the country. Some elements of what is done in Civil Support could inform how DoD conducts immigration enforcement and public safety, but that is the extent of the overlap with Civil Support.
As Just Security reports, U.S. forces have never been deployed in a direct immigration enforcement role, and the last time U.S. troops were used in a direct public safety role was 30 years ago during the Rodney King riots in Los Angeles, when California National Guard troops and elements from the Marine Corps Base in Camp Pendleton were sent to return calm to the city under the Insurrection Act invoked by President George H. W. Bush. Like previous uses of the act, the use of Guard and active-duty forces was tightly controlled, in a small geographical area, and lasted only long enough to ensure the crisis was passed. Elevating immigration enforcement and public safety missions as core DoD responsibilities would represent a sea change for the Department and suggests a more expansive and enduring mission than just the support for other federal agencies that are already responsible for these missions.
Firing of Senior Military Officers, Especially JAG Officers, and Replacement with Loyalists
Of all the administration actions shown on Professor Pagel’s chart, the one titled “Replacing the top officials in the military and law enforcement with MAGA loyalists " concerns me most.
First, the military's apolitical nature comes from the fact that a service member’s oath of service is to the Constitution and not to an individual. This bedrock principle ensures our military respects civilian control and works in service to our nation’s ideals. The wholesale firing of top military officers without cause was troubling, and this was exacerbated by stories President Trump told concerning his pick for Chairman of the Joint Chiefs of Staff, General Dan “Razin” Caine, whom Trump claimed he met in Iraq. As the President tells it, General Caine said he would “kill” for President Trump and then donned a red MAGA ballcap. General Caine denied these reports during his confirmation hearing, stating that he thought President Trump was confusing him with someone else. While I believe General Caine, I am troubled that he accepted his position without first having President Trump repudiate his words because, as Senator Elizabeth Warren astutely stated “It raises questions about whether you [Caine] were selected because Donald Trump thinks that you would be loyal to him rather than to the Constitution.” There should be no doubt in the President or anyone else’s mind that General Caine is loyal to the Constitution and nothing else, but since the President did not correct his story, it is not implausible to conclude the President believes General Caine’s loyalties are to Donald Trump, the man, in much the same way President Trump probably believed the same about former Vice President Mike Pence. Ultimately, President Trump discovered that Pence’s loyalties were to the Constitution, his role as President of the Senate, and to the Office of the President, not to President Trump personally, and this frustrated expectation of personal loyalty on the part of President Trump had negative consequences for our Republic that we still have yet to resolve.
Second, and far more disturbing, was that this purge of senior officers also included the senior JAG Corps officers, the top military lawyers, for all the Services. If I were involved in a military exercise and I received a scenario inject that said a new government’s leader was replacing top military leaders with loyalists, I would think that pretty routine. If I saw an inject saying that senior JAG Corps officers were being fired, that would get my attention as a highly unusual development. It is even more concerning given the attitude of SecDef Hegseth, who contemptuously calls military officers “jagoffs”4 and mistakenly saw them as an impediment to the successful conduct of military operations while he was in uniform. As Secretary Hegseth tells it in his book, The War on Warriors, he felt the restrictive rules of engagement (ROE) that JAG Corps officers promulgated were out of touch with a more brutal and primitive form of warfare that was required, in Secretary Hegseth’s mind, for the successful prosecution of America’s war on terrorism.
Having now read The War on Warriors, it seems Secretary Hegseth is either being disingenuous about the role of JAG Corps officers, or he does not understand their role. In his book, he shares a story of how, just before his first operational mission in Iraq, he tells his troops to ignore elements of the pre-mission ROE briefing provided by his unit’s JAG. Immediately following that anecdote, he praises his Brigade Commander, Colonel Michael Steele, for being “a certified badass” who “suffered no fools.”5 What makes Secretary Hegseth’s tale so troubling is that the ROE promulgated by his unit’s JAG would have had the approval of Colonel Steele because, as this New York Times article states “The axion –“lawyers advise and commanders decide” – is a core piece of every military lawyers education.” (I contend it is a core piece of every military officer’s education as well, as I was first exposed to that truism in my Naval Academy “Law for the Junior Officer” class.) A report in the Christian Science Monitor contains an interview with Major General Charles Dunlap, a retired Air Force JAG officer, who amplified on this point by saying correctly that “JAG lawyers, like all good lawyers, try to find lawful ways for their ‘client’ to do what the client wants to do…[but] Sometimes the only right legal answer is no.” Hegseth’s book shows no appreciation for the fact that ROE, which defines boundaries on the use of force, is determined by the operational commander in collaboration with their JAG and higher headquarters. What he fails to discuss in his book is how ROE enables the accomplishment of the mission within the constraints established by the operational commander, and Secretary Hegseth fails to discuss the fact that no ROE prevents a unit or soldier from acting in self-defense, which is an inherent right of all military units.
Both the President and Secretary Hegseth decided to fire senior officers and senior JAG Corps officers because, as the Secretary states in his book, he believes they are responsible for corrupting the military’s warrior spirit by not resisting the DEI policies that previous civilian leadership directed. He also blames JAG officers for restrictive ROE and scoffs at the “laws of war” and even the Geneva Conventions,6 which he thinks hamstring our warriors from adopting the brutal tactics of our enemies that he believes are necessary to win on a modern battlefield.
Secretary Hegseth advocated for pardoning of convicted war criminals (calling their crimes “tiny mistakes”), and President Trump obliged him during his first term. Given his positions, and with the President’s enablement, it is likely that Secretary Hegseth is looking for senior officers and senior JAG Corps officers who share his view that ROE should be far less restrictive and that American “warriors” should care more about killing the enemy than worrying about whether their actions are consistent with the policy put out by their operational commander. In the Secretary’s worldview, personnel at the tactical level should decide what is permissible and not permissible in war, and if they cross a line, they should be treated with the highest deference possible.7
Warrior Ethos and Lethality
Complementary to Secretary Hegseth’s views on the JAG Corps and the laws of war is his view that the American military, due to DEI and “woke” policies, has lost its way and that the kind of red-blooded fighting men who have always served and saved our Republic are no longer willing to serve in today’s “woke” armed forces. In his view, there needs to be a resurgence of a “warrior ethos” within the military and an emphasis on “lethality.” Just like his use of the terms DEI and woke, though, Secretary Hegseth has not clearly defined what is meant by either the term warrior ethos or lethality, nor have clear plans from the Pentagon been released on how the DoD will move toward these goals.
The loosening of ROE and the higher potential that war crimes will be excused or treated lightly under Secretary Hegseth gives some indication of what he means by warrior ethos and brings to mind a kind of Jack Bauer character, from the show 24, who was willingly to commit horrific acts of murder and torture to ensure the safety of the United States while remaining one of the “good” guys. A report that sheds some light on the Secretary’s views about warrior ethos and lethality talks about the visit to the Pentagon by Conor McGregor, “an Irish mixed martial artist who was found liable for rape by an Irish high court in a civil case last fall.” During their meeting, both Secretary Hegseth and Mr. McGregor talked about how immigration was destroying their respective countries, and Secretary Hegseth used the opportunity of the visit to also talk about the need to increase the lethality of U.S. forces. In his War on Warriors book, Secretary Hegseth states the following which gives some idea of how he conceives of lethality and the warrior ethos:
“Land warfare, historically understood, is defined by how many people you can slaughter in one space, at one time—limiting the will and capacity of your enemy to fight. (Same goes for bombing, missiles, and drone strikes; just a different delivery mechanism.)”
“But if we’re going to send our boys to fight—and it should be boys—we need to unleash them to win. They need them to be the most ruthless. The most uncompromising. The most overwhelmingly lethal as they can be. We must break the enemy’s will. Our troops will make mistakes, and when they do, they should get the overwhelming benefit of the doubt.”8
To an extent, I agree with Secretary Hegseth, to be a credible deterrent the United States needs to be a lethal force and that force must be made up of individuals who are, at their core, warriors – men and women who are willing to sacrifice and do the awful things that we expect men and women to do in battle to fight and win our nation’s wars. That is a highly simplistic view of warfare, though. Even going back over 2,000 years ago, historians and strategists, such as Thucydides and Sun Tzu, have discussed the complexities of war and have demonstrated that while having a credibly lethal force can deter and win war, lethality alone is not sufficient. History is full of examples of smaller, less lethal forces defeating larger ones through skill in war and the bravery of the men and women who fought. Sun Tzu, in his book of aphorisms, The Art of War, is famous for quotes such as:
“To win one hundred victories in one hundred battles is not the acme of skill. To subdue the enemy without fighting is the acme of skill.”
“The wise warrior avoids the battle.”
“Build your opponent a golden bridge to retreat across.”
“The supreme art of war is to subdue the enemy without fighting.”
My formative experiences in the Navy involve memories of Vice Admiral Metcalf, who would say that the mission of the Navy was simply “ordinance on target.” He meant that both literally and metaphorically. What Secretary Hegseth fails to mention in his strident calls for “lethality, lethality, lethality” is that precision in modern warfare is often of equal importance to lethality and that “lethality” does not just encompass killing enemies on the battlefield, it could also mean taking out a critical combat capability with a cyber weapon that effectively neutralizes the enemy’s ability to use a vital weapons system. Precise lethality, or better yet, precise effects, are what modern warfare requires since being “lethal,” especially indiscriminately lethal, is not only militarily inefficient, but it can also sow the seeds for future conflict and have adverse impacts on the safety of U.S. forces and future military actions.
The emphasis on lethality and military might is also troubling when considered in the context of how the administration has decimated the “soft power” capabilities of the government. The dismantling of USAID in the early days of the Trump administration is the most obvious example of sacrificing capabilities that allowed our country to influence and shape the world in ways that did not require military power. Antagonizing allies and pulling out of international agreements and forums; the shuttering of U.S. sponsored media organizations like Voice of America and Radio Free Europe; and Secretary of State Rubio’s recent plans for reorganizing the State Department, which will eliminate offices and positions within the major diplomatic arm of our government, to include closing offices focused on war crimes and global conflict, will all lessen the ability of the United States to exert influence in non-violent ways. These moves to disengage from the world will significantly limit U.S. options for anticipating and responding to threats and will eventually leave the military as the main tool in a tool bag that previously included robust diplomatic, information, and economic methods of achieving U.S. foreign policy goals. The saying, “if all you have is a hammer, every problem looks like a nail,” will become a truism for the U.S., if it chooses to invest only in military capability as an instrument of national power. It will limit the foreign policy options of senior leaders, who will increasingly see many problems as only solvable through coercion and the use of force because the other instruments of national power that should be available as options have either been dismantled or neutered.
Dangers Abound
Given all the above, my concerns about a U.S. military that has direct immigration enforcement and public safety responsibilities are immense. These are missions that require significant restraint to ensure that people being rounded up in immigration enforcement operations are treated in accordance with our laws and to ensure that those engaged in protest activity have their rights as U.S. citizens respected. When we consider that we have a President who likely told senior advisors in his first term that he would like them, meaning military forces, to shoot protestors in the legs and then combine that with a Secretary of Defense who is attempting to install officers in senior positions to execute his plans of inculcating the military with a “warrior ethos” that has “lethality” as its highest virtue, it provides a troubling mix if that force is directly responsible for humanely arresting illegal migrants or restoring order amongst U.S. citizens.
Add to the above the disdain for the laws of armed conflict, the willingness to pardon war criminals and those who commit political violence on the President’s behalf, and a desire for permissive ROE so that the military can be even more lethal without restraints, and it paints an alarming picture of how domestic employment of the military under the Insurrection Act could go horribly wrong, especially if troops believe that any actions they commit that are “outside the lines” will likely be excused or pardoned. If anything, since immigration enforcement and public safety are not core missions of DoD, they require training and an ROE that is strictly observed to avoid the kinds of mistakes that led to the Kent State Massacre in 1970. The specific dangers of pursuing these domestic missions for DoD under the Insurrection Act are as follows:
Dangerous for our people
If National Guard and active-duty service members are improperly or insufficiently trained to take on immigration enforcement and public safety roles, the results could prove disastrous for citizens and non-citizens alike. Violations of basic human rights and fundamental Constitutional and legal rights could occur as military members zealously perform their missions of rounding up illegal immigrants and restoring order to various places throughout the United States. In the worst case, our service members could use excessive force, leading to injury or death in much the same way that the Kent State Massacres occurred, an incident where National Guard troops felt threatened enough by campus protestors to open fire, killing four. If poorly trained troops do use excessive force and their actions receive a cursory review or are pardoned, public unrest is likely to increase, making further incidents more probable. The threat to civil liberty, injury, and death is heightened if DoD’s message to its troops is to be warriors, be lethal, be risk takers, and know that if you risk too much, we will have your backs because you are the true defenders of our Republic.
Dangerous for our troops
As noted in this New York Times article, warrior ethos must go beyond merely killing one’s enemy, it must also include “concepts such as discipline, honor and respect for the Uniform Code of Military Justice.” Additionally, as retired Lt. General David Barno, who commanded U.S. forces in Afghanistan, said, “The laws of combat are designed to protect civilians as well as troops from moral injury. Soldiers will have to think about the enemy and civilians they killed for the rest of their lives, and knowing they did it in an authorized way bounded by the laws of our country and armed conflict is incredibly important.” These are vitally important points that are either missing from the President or Secretary Hegseth’s discussion of warrior ethos and lethality or are so downplayed as to be barely noticeable in their statements on these concepts.
Properly conducting domestic operations for military forces under the Insurrection Act would require service members to significantly modulate the warrior ethos and emphasis on lethality, which Secretary Hegseth consistently emphasizes. It is also concerning that Secretary Hegseth is touting immigration enforcement and public safety responsibilities for DoD as if they were just routine and historic DoD missions. The truth is, they are not. Very few in DoD have experience with supporting these missions as an adjunct to other agencies, and if there is ever an expectation that DoD will need to perform these missions directly and at scale it would require the establishment of policy, doctrine, training, and exercises for DoD to execute the missions humanely, legally, and in a way that protects both civilian and military personnel from both physical and moral injury. If DoD does not prepare to execute these responsibilities, tragic incidents will likely occur that will be incredibly damaging to the military members involved. Even if those service members are excused or pardoned, the weight of any injury done to citizens or non-citizens in our Republic is a burden they will have to live with for the rest of their lives.
Dangerous for our Military Readiness
The mission of the DoD is to “provide the military forces needed to deter war and ensure our nation's security.” Throughout my career in both the Navy and federal service, the primary focus of the military has been on fighting and winning our nation’s wars using modular (Joint) forces that could scale the levels of lethal force they use to provide a credible deterrent and, when needed, to successfully conduct offensive operations to accomplish national objectives. The training at all levels to credibly perform that mission is intense, and the sustainment and maintenance of U.S. military capabilities are well planned to support deployment cycles for our forces, meant to provide a U.S. military presence to demonstrate our resolve and quickly respond to the crisis.
Using significant numbers of National Guard and active-duty units in immigration enforcement or public safety roles would harm military readiness in four ways:
First, as discussed above, the skill sets needed to prosecute these missions successfully differ from what is needed to fight and win foreign wars, so every moment spent preparing for and executing domestically focused missions is less time spent on training the skills needed for combat operations against our adversaries.
Second, the use of National Guard and active-duty forces for domestic missions, especially if it is a long-term or open-ended commitment of forces, will significantly disrupt deployment cycles and the sustainment and maintenance plans that ensure military readiness for combat. Operational use of capabilities, such as ships, armored personnel carriers, drones, tanks, and other weapons systems and gear that is done outside the planned employment cycles for this equipment puts unplanned wear on these capabilities. It could, and often does, lead to shorter-than-expected service lives for this gear, which must be replaced at great expense earlier than planned.
Third, as a corollary to the point above, a career in the military follows cycles of intense operational tours with less demanding tours that allow a service member more time to be with family, work on training and educational goals, learn new skills, and provide time to recover. Most likely, the active-duty forces used when the Insurrection Act is invoked will come from the troops in a cycle that is supposed to be less demanding and with a lower operational tempo. If the Insurrection Act is sustained over a long period, it will ultimately hurt the readiness of troops who will be going from one high-stress job to another high-stress job, because domestic deployments focused on illegal immigrants and quelling civil unrest will be every bit as stressful as operational deployments.
Fourth, many who join the military do so to defend our nation against foreign threats and would probably find prolonged periods of immigration enforcement and public safety missions problematic and distasteful.9 I know if that possibility existed when I was a junior officer, and I were called upon to lead troops in rounding up illegal migrants or quelling public unrest caused by administration actions, my reaction would have been “this is not what I signed up for,” and I would have left the military at the earliest opportunity, especially if I thought the “threat” I was deployed against was essentially a work of fiction or in service to partisan political causes. I suspect recruitment and retention in the National Guard, reserves, and all the active-duty services will fall if the military is called upon to perform domestically focused missions against illegal immigrants and American citizens for extended periods or capricious and specious reasons.
Dangerous for our Republic
Our country has been blessed in many ways, but one of the most significant is that despite the ease with which the Insurrection Act can be used and the substantial and near-unquestionable powers it affords the President, its use has been sparing, measured, and limited throughout our history. While we have the most powerful military in the world, Presidents have been extraordinarily conscious that turning that military’s warfighting might toward domestic security concerns is a decision that requires the highest standards of sober and scrupulous judgment.
Using the military domestically in a security role outside of disaster and emergency response runs counter to some of the core issues that led to the formation of our Republic, which is why the Insurrection Act has always been focused on addressing a specific, short-term problem. A sustained use of the Insurrection Act, for open-ended problems like immigration enforcement and public safety, would make the United States resemble the many democracies throughout the world that have resorted to using their military forces to quell dissent and restore order, a move that, once made, has been difficult for most nations to turn back from and has resulted in civilian dictatorships or military coups. With an administration already bent on enacting so many authoritarian actions, invocation of the Insurrection Act would be seen by many as just another piece of an overall authoritarian project meant to subvert our Constitution and transform our Republic into something that looks much more like Orban’s Hungary or Putin’s Russia than the world’s oldest functioning democratic nation.
A Counterpoint
For those who may think I am engaging in fearmongering with this analysis, that I am just cherry-picking information to paint the administration and its possible actions in the worst possible light, I disagree. My goal here was not to outline what is the most probable way events will unfold, it was to highlight the most dangerous way those events could unfold to ensure other understand the risk inherent in this particular administration’s use of the Insurrection Act. It is not meant to be a crystal ball, just one of many plausible scenarios that could occur and is consistent with known facts.
So, I fully concede the administration may never invoke the Insurrection Act, believing its use is too problematic or, as was shown this week when SecDef Hegseth and DHS Secretary Noem recommended not invoking the Act, that measure can be taken to meet administration goals that do not require the use of the Insurrection Act. Administration goals may be largely performative, and the 1 million deportations a year is less a firm policy goal and more of a rhetorical partisan policy device. Public protests may not increase in size and vehemence during the year, making it significantly harder, though not impossible, for the administration to invoke the Insurrection Act.
The most significant counterpoint argument is that I did not seriously consider Congressional and military responses if the administration moves toward invoking the Insurrection Act for specious reasons. Many in Congress clearly understand the danger of employing our military domestically, and while I think it unlikely that enough Republicans are willing to challenge President Trump on invoking the Insurrection Act, this may be a line that enough will decide should not be crossed, and they will resist it. For the military, the situation is different. Invocation of the Insurrection Act is lawful, and unless service members are directed to do something illegal, any orders issued for domestic use of the military under the auspices of the Act are lawful and must be obeyed. So, military members who refuse orders under the act are liable for arrest and courts-martial under the Uniformed Code of Military Justice (UCMJ). Some may go this route, but more likely, military members who are eligible to leave the service and disagree with the President’s invocation of the Insurrection Act would quit or resign. If enough did this, or if enough prominent military members did it, there is the possibility that President Trump would back away from using the Act, but it is just as likely that President Trump would see such a move as a sign of weakness and would, instead, press ahead with his decision.10
Conclusion
What I have laid out above is an argument for why I think it likely the Trump administration will ultimately invoke the Insurrection Act, the ways in which the administration has set the conditions for invoking the act; the various flash points that could result in invoking the act to address public unrest; the reasons why that is so concerning if partisan loyalists assume top military posts and the military is transformed as President Trump and Secretary Hegseth desire; and the dangers to our people, our military, our war readiness, and our Republic posed by capricious and sustained use of the Insurrection Act.
Regardless of who holds the Presidency, the Trump administration has just highlighted a fact we all know, which is that the Insurrection Act, as written, provides any President with far too much power. Our Founders correctly understood that our system of government ultimately rests on people of virtue holding the levers of power that we, the People, the Republic’s sovereign, have ceded for the public and common good. While I believe the Insurrection Act should be repealed in its entirety, as Congress can act swiftly in an emergency to give the President the authorities needed to meet a crisis, the act is undoubtedly in need of significant reform that would give Congress greater oversight and control over the President’s use of the power. It is insanity that Congress has the power to declare war yet has ceded near absolute power to the Executive, through the Insurrection Act, for unilaterally using the nation’s warfighting capability and its warriors against its own citizens. We should thank President Trump for highlighting the risk imposed on our Republic by the Insurrection Act and show our appreciation by letting our elected representatives know that they must fix this threat for the good of our Republic.
If you agree, I would appreciate it if you would join me in writing your representatives, as I did here, and let them know you want the Insurrection Act repealed or amended to ensure no President has the power to use military force domestically with so few restraints.
Front image courtesy of NPR - https://www.npr.org/2024/05/04/1249023924/kent-state-shooting-activists-protests-survivor
Sources Consulted
INTELLIGENCE SUPPORT TO NAVAL OPERATIONS NWP 2-01
https://info.publicintelligence.net/USNavy-IntelSupportNavalOps.pdf
Intelligence Preparation of the Battlefield ATP 2-01.3
For now, Pentagon and DHS won’t recommend that Trump invoke the Insurrection Act
https://www.cnn.com/2025/04/18/politics/pentagon-dhs-wont-recommend-insurrection-act/index.html
Trump administration seeks to turn mass deportations into an efficient business ‘like Amazon’
Insurrection Act
18 USC 1385: Use of Army, Navy, Marine Corps, Air Force, and Space Force as posse comitatus
CHAPTER 13—INSURRECTION
https://uscode.house.gov/view.xhtml?path=/prelim@title10/subtitleA/part1/chapter13&edition=prelim
10 U.S.C. §§ 331-335
https://policy.defense.gov/portals/11/documents/hdasa/references/insurrection_act.pdf
Reference Sheet on the Insurrection Act and Related Authorities
Martial Law in the United States: Its Meaning, Its History, and Why the President Can’t Declare It
The Insurrection Act Explained
https://www.brennancenter.org/our-work/research-reports/insurrection-act-explained
The Insurrection Act: A Presidential Power That Threatens Democracy
Inevitably of Invoking the Insurrection Act
DECLARING A NATIONAL EMERGENCY AT THE SOUTHERN BORDER OF THE UNITED STATES
CLARIFYING THE MILITARY’S ROLE IN PROTECTING THE TERRITORIAL INTEGRITY OF THE UNITED STATES
What military assets has Trump deployed to the US southern border? Troops, warships, spy planes, and more.
DoD Support to U.S. Border Security
https://www.northcom.mil/BorderSecurity/
Hegseth Promises ‘Shift’ at Pentagon and a Focus on Immigration
https://www.nytimes.com/2025/01/27/us/politics/hegseth-defense.html
‘100% Operational Control of the Border,’ Hegseth Promises in Texas
MEMORANDUM FOR SENIOR PENTAGON LEADERSHIP, COMMANDERS OF THE COMBATANT COMMANDS, DEFENSE AGENCY AND DOD FIELD ACTIVITY DIRECTORS
SUBJECT: Guidance on Hiring Freeze Exemptions for the Civilian Workforce https://www.dcpas.osd.mil/sites/default/files/2025-03/Guidance%20on%20Hiring%20Freeze%20Exemptions%20for%20the%20Civilian%20Workforce%203-18-2025.pdf
A U.S. Navy Arleigh Burke-class destroyer has been deployed to monitor the border with Mexico
Hegseth Gives Order to Enhance Military Mission at Southern Border, DOD Says
Hegseth approves migrant facility at Fort Bliss, Army engineers leveling desert land
https://www.stripes.com/branches/army/2025-04-11/fort-bliss-southern-border-migrants-detain-facility-17444095.html
Trump authorizes US military to take control of land at US-Mexico border
https://www.theguardian.com/us-news/2025/apr/12/trump-military-control-us-mexico-border
Military Mission for Sealing the Southern Border of the United States and Repelling Invasions
March numbers show most secure border in history - operational control is becoming a reality
Securing the Southern Border: Two Months of Decisive Action
Southwest Land Border Encounters
https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters
Hegseth and Noem Decide on Insurrection Act Guidance for Trump: Report
https://www.newsweek.com/hegseth-noem-decide-insurrection-act-guidance-trump-report-2061659
Trump's mass deportation plan hits its own wall
https://www.axios.com/2025/02/13/trump-immigration-deportation-obstacles
Potential Flash Points That Could Expand the Use of the Insurrection Act
Esper and Milley appear to adopt different strategies to deal with Trump as election approaches
https://www.cnn.com/2020/09/21/politics/esper-milley-trump/index.html
Trump, the Military, and the Insurrection Act
https://www.thenation.com/article/politics/trump-insurrection-act-project-2025/
Trump screamed at Milley over military crackdown on protests: book
Trump suggests he’ll use the military on ‘the enemy from within’ the U.S. if he’s reelected
Trump is talking more about 'the enemy from within' near Election Day. Who is he talking about?
https://www.politifact.com/article/2024/oct/30/trump-is-talking-more-about-the-enemy-from-within/
Yes, Trump said El Salvador's president should build more prisons for 'homegrown' US criminals
https://www.snopes.com/fact-check/trump-prisons-homegrown-criminals/
Lawfare
https://www.lawfaremedia.org/podcasts-multimedia/podcast/the-lawfare-podcast
Tracking the lawsuits against Donald Trump’s executive actions
https://apnews.com/projects/trump-executive-order-lawsuit-tracker/
Litigation Tracker: Legal Challenges to Trump Administration Actions
https://www.justsecurity.org/107087/tracker-litigation-legal-challenges-trump-administration/
Tracking Trump – updates on the presidency’s first 100 days
https://www.theguardian.com/us-news/2025/jan/27/trump-first-100-days-guide
“A republic, if you can keep it” - but can the US keep it? How Trump is dismantling democracy
The Authoritarian Playbook for 2025
https://www.authoritarianplaybook2025.org/
Trump administration argues lower courts wield 'excessive national influence'
https://wset.com/news/nation-world/trump-administration-argues-lower-courts-wield-excessive-national-influence-supreme-court-appeals-policy-birthright-citizenship-executive-orders-mass-firings
The Troubling Context
We’re About to Find Out What Mass Deportation Really Looks Like
https://www.theatlantic.com/politics/archive/2025/04/ice-deportation-funding-increase/682480/
Frustration Grows Inside the White House Over Pace of Deportations
https://www.nytimes.com/2025/03/05/us/politics/trump-immigration-deportations-arrests.html
Pentagon considering proposal to cut thousands of troops from Europe, officials say
Deployment of the U.S. Military for Immigration Enforcement: A Primer
https://www.justsecurity.org/105321/military-immigration-enforcement-deportation/
1992: Rioting in Los Angeles: Examining the Sequence of Events, Protocol And Ultimate Call to Send in the Marines
https://www.mca-marines.org/wp-content/uploads/1992-Riots-in-Los-Angeles.pdf
Caine denies Trump’s MAGA hat tale
https://www.politico.com/news/2025/04/01/caine-denies-trumps-maga-hat-tale-00263025
As Hegseth touts ‘warriors’ and ‘lethality’ to flex power, some weigh risk to soldiers
https://www.csmonitor.com/USA/Military/2025/0401/military-warrior-war-fighting-hegseth
In Pursuit of a ‘Warrior Ethos,’ Hegseth Targets Military’s Top Lawyers
https://www.nytimes.com/2025/02/22/us/politics/hegseth-firings-military-lawyers-jag.html
Observers worry 2nd Trump term could have long-term implications for military justice
How Pete Hegseth is pushing his beliefs on US agency: ‘nothing to prepare forces’
https://www.theguardian.com/us-news/2025/mar/15/pete-hegseth-defense-department-policy
Rubio unveils first stage of major State Department overhaul
https://www.cnn.com/2025/04/22/politics/rubio-state-department-cuts/index.html
Other Articles and an Interview Exploring this Topic
Pentagon faces deadline on recommending whether to invoke the Insurrection Act
https://taskandpurpose.com/news/military-insurrection-act-deadline/
Will Trump Invoke the Insurrection Act of 1807 Next?
https://substack.com/@carrasquillo/note/p-160579778?r=12fx35
Paul Krugman is Wrong
Troops Against Americans? (with Michael Waldman)
Investigating rumor Trump will declare martial law on April 20 after invoking Insurrection Act of 1807
https://www.snopes.com/news/2025/04/09/trump-martial-law-insurrection-act/
Yes, I realize the reference I use here is an Army publication, but unfortunately, the Navy Doctrine publication I would have used is firewalled and can only be accessed using a .mil or .gov address. The Intelligence Community, regardless of agency or military service, all follow the same core procedures of the intelligence field, and this Army publication does a good job of explaining the basics of evaluating adversary course of action.
Customs and Border Protection (CBP) has about 60,000 personnel and Immigration and Customs Enforcement (ICE) has about 20,000 personnel. I find it fascinating that despite the fact DoD contributed upwards of 10,000 forces on the ground and the services of, at the time, two multi-billion dollar warships and their crews to the southern border mission, a contribution that is over one-eighth of combined CBP and ICE end strength, that DoD is not mentioned at all in this DHS report.
As an aside, the pace and scope of the assault has been so multipronged and swift that at times it seems surreal, or like we are all part of a movie. As a retired Naval Officer, I had opportunities in my career to do exercise planning and execution. One of the key documents developed for any exercise is the Master Scenario Events List, also known as a MSEL*, which provides a roadmap by time and date of all the events that will happen in the exercise, what will trigger or stop them, and how those events will be revealed to the participants to drive their actions. One scenario I planned for a non-combatant evacuation operation (NEO), which may involve the evacuation of an embassy and the families of embassy staff in a hostile city that is undergoing violent unrest. To set the stage for that, in the early days of the exercise, I would release a series of naval messages, press reports, embassy communication, etc., that would tell the narrative of a country descending into authoritarianism and the public revolt against that. The goal is to throw in just enough red herrings and just enough credible data to allow the exercise participants to connect the dots and drive them to start taking the actions needed to advance the scenario and achieve the training objectives you’re shooting for. About a month into this administration, a good friend, who is far more experienced at exercise planning than I am, made the joke that if we ever hit our exercise participants with as many changes as rapidly as what has occurred during the Trump administration's first days, they would cry “foul” because there would be no ambiguity about the authoritarian goals of the government and because they would think the multipronged assault on core institutions and norms in such a rapid fashion as fairly unrealistic.
*Pronounced “measles,” like the disease. I could not find any military examples of what I am talking about online, but, for the curious, here is a good overview of the MSEL process and a guide on how MSELs are developed.
Hegseth, Pete. The War on Warriors: Behind the Betrayal of the Men Who Keep Us Free (p. 162). HarperCollins. Kindle Edition. Hereafter referred to as “Hegseth.”
Hegseth, pp. 162-163
During meetings with Republican Senators and his hearings, Secretary Hegseth stated that he respects the Geneva Conventions, but given the short amount of time provided for his confirmation hearing, his true views on the laws of armed conflict and the Geneva Conventions were not explored in depth.
Hegseth, pp. 175-182.
Hegseth, pp. 181-184.
Yes, I know, the oath of service says to “defend against enemies foreign and domestic,” but I know when I first joined and throughout my career I rarely, if ever, considered “domestic enemies” as something I would need to combat. I spent the first part of my career focused on Russia, Iran, and Iraq, the last part of my career focused on the Global War on Terrorism and the threats posed by China, North Korea, Iran, and a diminished Russia.
While I avoided reading any of these articles until after I was done with this, there are others who share my concerns and have written very good, and much shorter articles on this topic. If you would like to read them, here are some that I recommend:
Pentagon faces deadline on recommending whether to invoke the Insurrection Act
https://taskandpurpose.com/news/military-insurrection-act-deadline/
Will Trump Invoke the Insurrection Act of 1807 Next?
https://substack.com/@carrasquillo/note/p-160579778?r=12fx35
Paul Krugman is Wrong
Troops Against Americans? (with Michael Waldman)
Investigating rumor Trump will declare martial law on April 20 after invoking Insurrection Act of 1807
https://www.snopes.com/news/2025/04/09/trump-martial-law-insurrection-act/
Thank you for referencing my work! But just to say I'm not an American citizen - I'm a dual British and German citizen! Although I have spent several years working in the US as a researcher in the past :)