Trump administration threatens to invoke Insurrection Act

White House officials have held increasingly serious discussions in recent days about President Donald Trump’s invoking the Insurrection Act, a rarely used 19th century law that gives the president the power to deploy active-duty troops inside the United States for law enforcement purposes, five people with knowledge of the talks told NBC News.

Trump has sought to deploy National Guard troops in several major cities — including Los Angeles, Chicago and Portland, Oregon — saying they are needed to reduce crime and protect Immigration and Customs Enforcement officials from protesters. Critics have said the Trump administration is exaggerating issues in those cities.

A decision to invoke the act is not expected to be imminent, a senior administration official said. Were it to happen, it would be a notable escalation. The guard is currently deployed in limited support roles since active-duty members of the military are forbidden from conducting civilian law enforcement actions, such as conducting searches and making arrests. But the Insurrection Act allows the president to deploy troops inside the United States for that purpose.

Trump’s plans to deploy the National Guard have occasionally hit legal hurdles. A federal judge in Oregon on Sunday blocked him from sending guard members from any state to Portland. The next day, Trump said publicly that he would invoke the Insurrection Act “if it was necessary.”

“If people were being killed and courts were holding us up or governors or mayors were holding us up, sure, I’d do that,” Trump said. As of now, he said, it has not been needed.

Talk inside the White House about invoking the act has ebbed and flowed since Trump took office again in January, said the five people, who include the senior administration official, two people familiar with the discussions and two people close to the White House.

But the debate inside the administration has shifted recently, from whether it makes sense to invoke the act to more deeply exploring how and when it might be invoked, both people close to the White House said.

Administration officials have drafted legal defenses and various options for invoking the act, two of the people said.

But the current, broad consensus among Trump’s aides has been to exhaust all other options before taking that step, the senior administration official and one of the people close to the White House said.

The person close to the White House described the process as working its way up “an escalatory ladder.”

Asked about discussions regarding invoking the Insurrection Act, White House spokesperson Abigail Jackson said in a statement: “The Trump administration is committed to restoring law and order in American cities that are plagued by violence due to Democrat mismanagement. And President Trump will not stand by while violent rioters attack federal law enforcement officers. The administration will work to protect federal assets and officers while making American cities safe again.”

The act gives the president broad discretion regarding its invocation. It can be invoked at the request of a state or when the president determines that conditions like “unlawful obstructions,” “rebellion” or “insurrection” have made it difficult to enforce the law. During the Civil Rights era, three presidents — Dwight D. Eisenhower, John F. Kennedy and Lyndon B. Johnson — used the act to protect activists or enforce court orders mandating desegregation. It was last used, at the request of California’s governor, during the 1992 Los Angeles riots.

The governors of Oregon and Illinois both oppose sending troops to their states. There are no riots, and authorities there are not defying court orders.

The White House expects that any potential invocation of the act would be met with swift legal challenges and ultimately land at the Supreme Court.

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