The Insurrection Act is back on the table
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The last time President Trump wanted to send active duty troops to American cities, his Secretary of Defense publicly disagreed. The option to use active duty forces in a law enforcement role should only be used as a matter of last resort and only in the most urgent and dire of situations.

We are not in one of those situations now. That's former Defense Secretary Mark Esper in the summer of 2020 as protests swept across the country after the murder of George Floyd. And Esper told NPR in 2022 that behind the scenes, Trump suggested going even further to quell protests. Esper recounted a conversation that included then Joint Chiefs of Staff Chairman Mark Milley. He looked frankly at General Milley and said, can't you just shoot them? Just shoot them in the legs or something.

And it was a question in the form of a suggestion in the form of a question. And we were just all taken aback at that moment as this issue just hung very heavily in the air. Trump has called that claim a complete lie. Esper told NPR he thought about resigning, but ultimately stayed on the job because he worried about who would replace him. I was fairly confident that the president would replace me with an

Uber loyalist, if you will, who would do exactly what he wanted. Back in 2020, Trump eventually dropped the active duty troops in the streets idea. Well, five years and one Trump reelection later, it's back on the table. Trump has already deployed California National Guard units to Los Angeles over the loud objection of the state's governor, Gavin Newsom. It's in response to protests against federal immigration raids in the city. He's got violent people and we're not going to let him get away with it.

That was Trump on Sunday before boarding Air Force One. He suggested other U.S. cities could be next. Well, we're going to have troops everywhere. We're not going to let this happen to our country. We're not going to let our country be torn apart like it was under Biden. And Trump's current defense secretary, Pete Hegseth, said on social media over the weekend that active duty troops were ready to mobilize, quote, if violence continues.

Trump was asked on Sunday what the bar would be for sending in those Marines. His reply? The bar is what I think it is. Consider this. Throughout his second term, Trump has pushed hard to expand the power of his office. Is his National Guard deployment in Los Angeles a last resort or a first step? From NPR, I'm Ari Shapiro.

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It's Consider This from NPR. The governor of California and the mayor of Los Angeles have objected to President Trump's National Guard deployment. Both are Democrats. They say they don't need or want these troops to manage the protests. Governor Gavin Newsom announced today that California would be suing the Trump administration for what he called an unlawful action.

The Trump administration appears to be relishing the showdown with a blue state over a central part of the president's political agenda. Here's what Trump told reporters at the White House Monday. The people that are causing the problem are professional agitators, they're insurrectionists, they're bad people, they should be in jail. For a bigger picture, I spoke with national security expert Juliette Kayyem, who is a homeland security official in the Obama administration.

When do you think it's appropriate for a president to bypass a state governor to deploy the National Guard? The president's authority to federalize the National Guard has been limited in the past to when either a governor does not follow law, as we saw during the desegregation cases, or when a governor asks for it because their own resources are depleted. But we didn't see that this weekend. We saw a president...

essentially at cable news, see a few cars on fire and decide to federalize National Guard troops under the command of the governor and put him under the command of himself. We heard profanities

President Trump there refer to the protesters as insurrectionists. He has not yet invoked the Insurrection Act, but he still might. What would invoking that law empower him to do? The Insurrection Act is essentially a way for a president to militarize the

first responders. I mean, that's essentially what it would be. It would be you're deploying the active military because of an insurrection or unrest to quell civil society.

That might be necessary in an instance that you can think of maybe in the future. That is not what happened here. I mean, the reason why we have police departments, emergency management agencies, fire departments, is because sometimes there is unrest. Sometimes there are riots. Sometimes peaceful protests turned violent.

Not peaceful. But the idea that you would say, well, there's just unrest, therefore I'm going to either federalize the National Guard or worse, deploy under the Insurrection Act active military members, think the Marines, the Air Force, into urban society is essentially the total threat

Let me ask you about something that Vice President Vance posted on social media, which might point to the administration's strategy here. He wrote,

One of the main technical issues in the immigration judicial battles is whether Biden's border crisis counted as an invasion. He writes, so now we have foreign nationals with no legal right to be in the country waving foreign flags and assaulting law enforcement. If only we had a good word for that, end quote. Can you parse the argument he's making here? And do you think it's a valid one? Yeah.

I'll start with the second question. No, it is not valid. This is an administration that knows what words to use, and they're using them for potentially a future case, whether they are going to invoke the Insurrection Act or, as we've seen already, they're going to be challenged in court by Governor Newsom under the Title X authority that Donald Trump used. So they're putting out

that is going to protect them, I believe, in any future legal proceedings. And they have so lowered the floor at this stage on the standards that most rational people would use for unrest or riots or even insurrection that we have to assume that that is purposeful. And so what do you make of Governor Newsom's argument that this is on its face illegal and that the president exceeded his powers? Do you agree? Yeah.

I don't know how he's going to do in court. I mean, part of it is because there's not a lot of case law here because we've just never seen this before. So he may have a case. In other words, the president doesn't have unfettered ability to simply federalize the National Guard. Title 10 talks in terms of words like unrest, insurrection, civil unrest. But those have not really been well defined by courts. And once again,

An issue that could have been resolved if only the federal government viewed its role as supporting first responders and de-escalating difficult decisions is heading to court. And that, again, will lead to new doctrine.

Finally, what is happening in Los Angeles right now is obviously different from the administration's crackdown on higher education or on law firms. But do you see parallels with the way the executive branch is using the tools it has to target centers of power that Trump perceives as standing in the way of his agenda? Yes, absolutely. I mean, I have been thinking about this this weekend, that it all seems similar, that what Trump cannot do through the processes of politics is

he does through the processes of force. And that is what we're seeing, whether it's contracts, whether it's a certification of educational institutions or punishing them for having international students or going after a governor who he clearly does not like. It is that brute force rather than negotiation through processes that already exist that

that leads us to court again and again and again. But this instance is very different. The military deployment in society where people are allowed to protest peacefully, where there are

important debates about what this country is and who we want to be. You add a military into that calculation and it's not a future I really like seeing. It makes me worried. That is former Assistant Secretary at the Department of Homeland Security and current professor at Harvard's Kennedy School of Government, Juliette Kayyem. Thank you so much. Thank you.

This episode was produced by Megan Lim and Connor Donovan with audio engineering by Ted Meebane and Simon Laszlo Jansen. It was edited by Patrick Jaron-Watananen. Our executive producer is Sammy Yenigan. It's Consider This from NPR. I'm Ari Shapiro.

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