U.S. Supreme Court Justice Brett Kavanaugh suggested President Donald Trump could try a different legal route—potentially the Insurrection Act—if he wants to deploy troops to U.S. cities.
Kavanaugh made the point in a separate writing after the Supreme Court on Tuesday declined to lift a lower-court order that halted the Trump administration’s attempt to deploy National Guard troops in the Chicago area in support of its immigration crackdown.
The justices rejected the administration’s emergency request to overturn U.S. District Judge April Perry’s ruling blocking the deployment. Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch publicly dissented.
Asked about the possibility of invoking the Insurrection Act, White House spokesperson Abigail Jackson did not confirm whether Trump was considering it, but said the administration “will continue working day in and day out to safeguard the American public.”
Why It Matters
The Insurrection Act of 1807 permits a president to call up reserve or active-duty military forces in certain circumstances, including to suppress rebellion or domestic violence, or to enforce federal law.
In 1827, the Supreme Court ruled that determining whether conditions justify invoking the act “belongs exclusively to the president,” a standard that gives the executive branch wide discretion with relatively limited judicial constraints.
Trump has previously said he is open to invoking the Insurrection Act, and the idea has drawn heightened scrutiny because it would mark a major escalation in using military forces in Democratic-led cities.
What to Know
In his concurring opinion, Kavanaugh said he agreed with keeping the Chicago National Guard deployment blocked for now, but he signaled that the president might retain broader room to maneuver in other future situations.
In a footnote, Kavanaugh emphasized that, as he read it, the court’s opinion “does not address the president’s authority under the Insurrection Act.”
He also wrote that the court’s opinion does not “purport to disturb” what he called the president’s “long-asserted Article II authority” to use the U.S. military—distinct from the National Guard—to protect federal personnel and property and ensure federal law is carried out.
Kavanaugh added that one “apparent ramification” of the ruling is that it could push a president to rely more on the U.S. military than the National Guard for protecting federal personnel and property inside the United States.
Following the decision, some prominent Trump supporters urged the president on social media to invoke the Insurrection Act.
What People Are Saying
William Banks, professor emeritus of law at Syracuse University and an expert on the Insurrection Act, said Kavanaugh’s “prediction could come true.”
Banks said the Insurrection Act contains “broad and open ended triggering language” and is “clearly” an exception to the Posse Comitatus Act, which restricts the military from enforcing domestic law.
“One problem in present circumstances is that the administration has framed the mission as protection of federal officials and property,” he said. “That doesn’t sound like insurrection, so the lawyers would have to pivot to a different framing, focused more on civil unrest. I don’t see that in Chicago or anywhere else right now, but you never know.”
Trump told reporters in October: “Well, it’s been invoked before, as you know. If you look at Chicago, Chicago is a great city where there’s a lot of crime, and if the governor can’t do the job, we’ll do the job. It’s all very simple.”
White House spokesperson Abigail Jackson said: “The President promised the American people he would work tirelessly to enforce our immigration laws and protect federal personnel from violent rioters. He activated the National Guard to protect federal law enforcement officers, and to ensure rioters did not destroy federal buildings and property. Nothing in today’s ruling detracts from that core agenda. The Administration will continue working day in and day out to safeguard the American public.”
Conservative activist Nick Sortor wrote on X: “BREAKING: The Supreme Court has allowed a lower court’s block on President Trump’s deployment of the National Guard to Chicago—for now.
“Prepare for assaults on ICE agents to SURGE in Chicago. This is ABSURD. Might be time for the INSURRECTION ACT, 47!”
Conservative commentator Gunther Eagleman wrote on X: “It’s time to INVOKE THE INSURRECTION ACT! Our agents are UNDER ATTACK daily and they CANNOT be left vulnerable. This is unfortunate, but Trump has additional pathways of protecting the men and women who are securing our sovereignty!”
What Happens Next
The Supreme Court’s order is not a final decision on the merits, but it may influence other lawsuits challenging efforts to deploy the National Guard in other Democratic-led cities.
For now, it remains unclear whether Trump will attempt to invoke the Insurrection Act as a way to bypass court rulings that block troop deployments.
