Fact check: Trump’s false claims about the Insurrection Act

By Daniel Dale, CNN

(CNN) — President Donald Trump has made a series of inaccurate claims in recent days about the Insurrection Act, the old law he has mused about invoking to deploy troops to some US cities.

The law – more precisely described as a collection of related laws from the 18th and 19th centuries – grants presidents sweeping authority to deploy both active-duty and National Guard troops to states, if certain vague conditions are met, and to have them perform the domestic law enforcement from which the military is normally prohibited.

• Trump said Sunday that if he invoked the Insurrection Act, “there’s no more court cases.” That’s not true. A decision to invoke the act would almost certainly be challenged in lawsuits that would be considered by the courts, though legal experts say the vague and deferential language of the legislation would likely make it difficult for challengers to prevail under most circumstances.
• Trump said Sunday that one particular president, whom he didn’t name, used the Insurrection Act “28 times during the course of a presidency.” That’s not true. No president has invoked the Act on more occasions than Ulysses S. Grant’s six, according to research published in 2022 by New York University’s Brennan Center for Justice. In fact, the act and the similar laws that preceded it have been invoked on a total of 30 occasions in US history, the Brennan Center found.
• Trump said Sunday that “like 50% of the presidents” have invoked the act. That’s at least a slight exaggeration, and Trump was flat incorrect when he omitted the “like” on October 13 and said that the act has been invoked by “50% of the presidents.” Seventeen of the 45 presidents to date, so just under 38%, have invoked the act or its precursor laws, the Brennan Center found.

The White House did not respond to questions about Trump’s inaccurate assertions. Below is a more detailed fact check.

Invoking the Insurrection Act doesn’t mean ‘no more court cases’

Trump has criticized the lawsuits that have followed his decisions to deploy National Guard troops to cities like Los Angeles, Portland, Chicago, Memphis and Washington, DC, using legislation that is narrower than the Insurrection Act. After mentioning the Insurrection Act, Trump told reporters Sunday: “I could use that, and everybody agrees you’re allowed to use that, and there’s no more court cases, there’s no more anything. We’re trying to do it in a nicer manner, but we can always use the Insurrection Act if we want.”

But it’s “categorically false” that there couldn’t be any court cases regarding a Trump invocation of the Insurrection Act, William Banks, a Syracuse University law professor, said in an interview.

Trump could have fairly said that he would probably start with the upper hand in a future lawsuit challenging his invocation of the act. Banks said the act gives the president “tremendous discretion” and that it is “very heavily weighted on his side.” But it’s “of course not true,” Banks said, “to say a court wouldn’t review what he’s done”; the courts would consider lawsuits over whether there have been violations of the law’s own requirements or violations of the Constitution.

Harvard University law professor Jack Goldsmith wrote in an article this month: “To be sure, every single word of the Insurrection Act will be intensely contested in court should the president invoke it. And given the administration’s tendency to blunder, to bully, to overstep, and to develop factual predicates inadequately, not to mention the president’s always-legally-unhelpful social media activity, litigation might be tough and victory for the administration in every instance cannot be assumed. My point is that if the easy-to-meet statutory predicates are satisfied, and with decently competent lawyering, courts will not be able to stop the president from a very robust lawful domestic use of the military under the Insurrection Act, should President Trump choose to go there.”

As Banks and Goldsmith pointed out, the text of the Insurrection Act is very broad. It says the president can deploy troops to states “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.” It also says the president can deploy troops to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” if such a situation hinders the execution of laws enough that any part of the public in a state is deprived of a constitutional right and the state has failed to protect that right.

Brennan Center counsel Joseph Nunn noted in an article that the Supreme Court ruled in 1827 that the president alone had the authority to decide what constitutes a situation that required the domestic deployment of “the militia.” But there is an active debate among scholars about how cleanly that 1827 precedent applies to the current situation under Trump, and Nunn wrote that “in subsequent cases, the Supreme Court has suggested that courts may step in if the president acts in bad faith, exceeds ‘a permitted range of honest judgment,’ makes an obvious mistake, or acts in a way manifestly unauthorized by law.” He also noted that the Supreme Court has clarified that the courts can review “the lawfulness of the military’s actions once deployed.”

Stephen Vladeck, a Georgetown University law professor and CNN legal analyst, said in an email that a late-1700s precursor to the act “required the President to get judicial approval in advance before he could call out the militia to help execute federal law,” as George Washington then did before quashing a violent tax rebellion in 1794. While this pre-approval requirement no longer exists, Vladeck said, “Given the extent to which this country was founded on outrage over King George’s use of the military as a tool to oppress the populace, the idea that Congress would ever, or did, give the president unreviewable power to deploy troops domestically whenever he wants is, for lack of a better word, bollocks.”

No one president has invoked the Insurrection Act even close to “28 times”

Trump told reporters Sunday: “You take a look in the past, some – one in particular president used it 28 times during the course of a presidency.”

That figure is nowhere close to accurate.

The Brennan Center found that Grant was the president who most frequently invoked the act. He invoked it on six occasions in the 1870s amid the White supremacist violence and political upheaval that followed the Civil War.

Three other presidents each invoked the Act on three occasions, according to the Brennan Center: Grover Cleveland in the 1880s and John F. Kennedy and Lyndon B. Johnson during the Civil Rights Movement in the 1960s.

For example, Kennedy invoked the Insurrection Act in 1963 when Alabama Gov. George Wallace attempted to defy desegregation by physically blocking Black students from entering the University of Alabama and again later that year when Wallace tried to use the state National Guard to stop Black students from entering public schools.

Johnson invoked the act in 1965 to protect a civil rights march from Selma to Montgomery, Alabama after marchers were attacked by law enforcement during a previous attempt. Johnson invoked the act again to deal with riots in Detroit in 1967 and in Chicago, Baltimore and Washington, DC, following the assassination of the Rev. Martin Luther King Jr. in 1968.

It’s not true that half of presidents have invoked the Insurrection Act

Trump told reporters October 13 that “50% of the presidents have used the Insurrection (Act).” He said in an interview recorded Thursday that “50% of the presidents, almost, have used that,” then told reporters Sunday that “like 50% of the presidents have used the Insurrection Act.”

But Trump’s “50%” number is at least somewhat too large even with the “like” and “almost” modifiers, and it’s plain wrong without those words attached. The Brennan Center found that 17 of 45 presidents, or about 38%, have invoked the Act or its precursor laws.

It’s also worth noting some pertinent context Trump hasn’t mentioned.

Of the 30 occasions on which presidents invoked the act, 19 came more than 100 years ago, according to the Brennan Center research. No president has invoked the Act since George H.W. Bush in 1992 (following the eruption of riots in Los Angeles after the police beating of Black motorist Rodney King). And though the act gives presidents the right to deploy troops over opposition from states, the president’s decision to invoke the act was backed by state leaders on the vast majority of the occasions.

“There are only a handful of examples, across American history, of presidents using the Act in the face of local opposition – and those have invariably involved contexts in which either everyone agreed as to the threat (e.g., the British invasion during the War of 1812), or where the state was itself violating federal law (e.g., Little Rock),” Vladeck said.

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