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insurrection act
'Democratic Freedoms' Under Threat as Migrants Charged for Entering Trump Militarized Border Zone
"As presidential overreaches pile up, they underscore the urgent need for Congress and the courts to reassert their roles as checks on executive authority," said two experts at the Brennan Center for Justice.
Apr 30, 2025
At least 28 migrants who crossed into the U.S. over the southern border could face up to a year in detention and $100,000 in fines after being charged Monday not only with "illegal entry" but also with violating "security regulations"—the result of U.S. President Donald Trump's transformation of the border into a 170-mile-long "National Defense Area."
As Common Dreamsreported last month, the White House has pushed to create a "buffer zone" patrolled by U.S. troops along a stretch of the southern border in New Mexico, with soldiers empowered to immediately detain anyone who "trespasses" in the 60-foot-wide area before handing them over to Customs and Border Protection (CBP).
The Washington Postreported that the migrants were apprehended on a route that has been used for years by people entering the U.S., and were accused in court filings of violating "the order issued on April 18, 2025, by the U.S. Army Garrison Fort Huachuca military commander designating the New Mexico National Defense Areas, also known as the Roosevelt Reservation, as both a restricted area and a controlled area under Army Regulation 190-13."
Carlos Ibarra, a court-appointed attorney for the migrants facing charges, told the Post that the government was "piling on" by adding the security violation charge, and said that "if these folks had $100,000, they wouldn't be coming over here."
The arrests came after Defense Secretary Pete Hegseth made an appearance at the border last week, saying in a video posted on the Pentagon's social media accounts, "This may as well be a military base."
"Any illegal attempting to enter that zone is entering a military base," he said. "You add up the charges of what you can be charged with, misdemeanors and felonies, you could be looking up to 10 years in prison when prosecuted."
Ordinarily people who are charged for crossing the border without authorization have faced a potential six-month jail term and up to $5,000 in fines.
The area was turned into a de facto military base when Trump signed an executive order earlier this month giving the Pentagon jurisdiction over the Roosevelt Reservation, saying in a memo that the southern border "is under attack from a variety of threats" and requires a more direct security role for the U.S. military.
According to the Migration Policy Institute, apprehensions of migrants by U.S. Border Patrol sank to just 7,000 in March, the fewest in at least 25 years.
The memo creating a military installation at the border was designed to give federal troops a "legitimate military reason" to apprehend, search, and detain troops without violating the Posse Comitatus Act and without Trump having to invoke the Insurrection Act of 1807, the Brennan Center for Justice explained in a blog post on Monday.
The Posse Comitatus Act prohibits federal armed forces from engaging in civilian law enforcement without the approval of Congress. The Insurrection Act provides an exception to that law, as does a loophole in the Posse Comitatus Act called the "military purpose doctrine." Trump's advisers have so far recommended against invoking the Insurrection Act, which authorizes the president to deploy military forces inside the United States to enforce the law in certain situations.
Trump's memo allowing the military to "act as a de facto border police force," wrote Elizabeth Goitein and Joseph Nunn at the Brennan Center, "could have alarming implications for democratic freedoms."
"It continues a pattern of the president stretching his emergency powers past their limits to usurp the role of Congress and bypass legal rights," they wrote. "He has misused a law meant to address economic emergencies to set tariffs on every country in the world. He declared a fake 'energy emergency' to promote fossil fuel production. And he dusted off a centuries-old wartime authority to deport Venezuelan immigrants, without due process, to a Salvadoran prison notorious for human rights violations."
"As presidential overreaches pile up, they underscore the urgent need for Congress and the courts to reassert their roles as checks on executive authority," wrote Goitein and Nunn.
Along with concerns about the legality of Trump's move, Goitein and Nunn noted that troops "are trained to fight and destroy an enemy; they're generally not trained for domestic law enforcement." Empowering them to engage with civilians now could make it easier for the administration to "justify uses of the military in the U.S. interior in the future."
"Asking them to do law enforcement's job creates risks to migrants, U.S. citizens who may inadvertently trespass on federal lands at the border, and the soldiers themselves," they wrote.
Rebecca Sheff, senior staff attorney at the ACLU of New Mexico, wrote last week that Trump's creation of a military installation on public border land "represents a dangerous erosion of the constitutional principle that the military should not be policing civilians."
"By authorizing service members to detain, search, and conduct 'crowd control,' these new authorities undermine our state's values of dignity, respect, and community," said Sheff. "We don't want militarized zones where border residents—including U.S. citizens—face potential prosecution simply for being in the wrong place. This isn't how we want to be in relation with our neighbors. This dangerous expansion of military authorities threatens both our civil liberties and the cultural fabric that makes our borderlands unique."
Hina Shamsi, director of the ACLU National Security Project, also described potential impacts on U.S. citizens who live in border areas.
In addition to endangering migrants who cross the border, Shamsi wrote, Trump's actions "are worsening the conditions under which civilian border communities live."
"Our southern border is home to approximately 19 million people, in addition to the regular business and trade commuters who come across the border every day," wrote Shamsi. "The new policy has serious implications for border residents living under this expanded militarized zone, which includes cities like San Diego, California; Nogales, Arizona; El Paso, Texas and other heavily populated, thriving communities. People in these areas could now face federal prosecution for trespassing if they unintentionally walk or drive onto a designated 'national defense area.'"
Shamsi warned that while Trump has not yet invoked the Insurrection Act, "his administration continues to invest in the theater of war," and called on Congress "to insist on oversight for these expanded actions... and to call for safeguards and transparency to protect border residents from escalating military control over their daily lives."
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'Arbitrary, Outlandish, and Unjustified': Raskin Warns Trump Against Invoking Insurrection Act
"There is no factual predicate for Trump to invoke the Insurrection Act at the southern border or anywhere else in the United States," said the congressman and constitutional scholar.
Apr 18, 2025
After being "flooded with messages," the U.S. Rep. Jamie Raskin issued a lengthy Friday statement about mounting rumors that Republican President Donald Trump "may invoke the Insurrection Act of 1807 and deploy the National Guard to conduct arrests at the border or elsewhere on U.S. soil" as soon as this weekend.
Although "we have no specific information indicating that this will happen," noted Raskin (D-Md.)—the House Judiciary Committee's ranking member and a constitutional scholar—the public "anxiety arises from the fact that April 20 is the due date for a report from Trump's Cabinet on the state of the southern border called for in a presidential executive order which specifically mentions the Insurrection Act."
As Homeland Security Secretary Kristi Noem and Pentagon chief Pete Hegseth have prepared to hand over their report, warnings and explainer articles have circulated this week. Bill Blum wrote about it at Truthdig, PolitiFactdetailed the difference between invoking the Insurrection Act and martial law, and both the ACLU and the Interfaith Alliance shared blog posts. That all followed a Waging Nonviolence piece from earlier this month laying out what to do if Trump takes the feared action.
If Trump invokes the Insurrection Act, the courts are unlikely to stop him. We wish there was some institution — businesses, media, law firms, universities, anything — that would save us. As with so much in this era, it will fall to the people to protect the republic.
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— Indivisible ( @indivisible.org) April 15, 2025 at 8:37 AM
Raskin explained that "the Insurrection Act was designed for only the most extraordinary and dire circumstances, specifically when unlawful rebellion 'make[s] it impracticable to enforce the laws of the United States in any state by the ordinary course of judicial proceedings.'"
Invoking the law in the current reality, he continued, "would be an arbitrary, outlandish, and unjustified exercise of power. It cannot be the case that this is 'the most secure border in history' and simultaneously that we need to invoke the Insurrection Act to address the crisis there."
According to the congressman: "There is no factual predicate for Trump to invoke the Insurrection Act at the southern border or anywhere else in the United States. The courts are open and perfectly functional (much to Trump's dismay), state and local police continue to enforce the laws, and the Trump administration routinely celebrates the safety and calm at the border."
"Trump might want to call out the troops because they look 'tough,'" he acknowledged. "That seems to have been his rationale for using military planes as props to fly immigrants to Guantánamo Bay and El Salvador's brutal mega-prison. This is plainly no justification for triggering the act, and Trump would also essentially be admitting extreme policy failure. This can be the most secure border in history, or it can be an insurrection requiring the extraordinary use of the American military in our own society. But it certainly cannot be both."
If the rights of non-citizens are not secure, then the rights of citizens are not secure.
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— Rep. Jamie Raskin (@raskin.house.gov) April 17, 2025 at 3:52 PM
Since returning to power, having campaigned on the promise of mass deportations, Trump has sparked fears about crackdowns on civil society, sent immigration agents after foreign students critical of U.S. support for Israel's genocidal assault on the Gaza Strip, and shipped hundreds of migrant men to El Salvador's Terrorism Confinement Center (CECOT)—including Maryland resident Kilmar Abrego Garcia, who was supposed to be protected by a court order blocking deportation to his homeland.
Raskin said on social media Thursday that he was "grateful to my friend" and fellow Maryland Democrat, Sen. Chris Van Hollen, "for traveling to El Salvador to try to check on Abrego Garcia's condition."
"We will not let up the pressure on the self-proclaimed dictator of El Salvador or the aspiring dictator here," he pledged. "We will continue the fight to bring Abrego Garcia home."
The congressman also highlighted that Juan Carlos Lopez-Gomez, a 20-year-old U.S.-born American citizen, was detained at a Florida jail this week at the request of immigration authorities. Raskin said: "How is it possible U.S. citizens are being held as illegal aliens in America even after they produce their birth certificate? This is intolerable."
In his Friday statement, Raskin concluded with a message for Trump: "I urge the president to make the report public and to commit himself to protecting the civil rights and civil liberties of the people of the United States by keeping the military out of civilian law enforcement matters. We must stop playing cheap political games with immigration, and we must restore the rule of law in America."
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Why April 20, 2025 Could Alter the Course of American Democracy
April 20 is the deadline Defense Secretary Pete Hegseth and Homeland Security Agency head Kristi Noem have for submitting a joint report to President Donald Trump with their recommendations for invoking the Insurrection Act of 1807 and the National Emergencies Act of 1976.
Apr 18, 2025
For the first time since 2014, and the last time until 2087, Easter Sunday will fall on April 20. The 20th will also mark the last day of Passover, Chinese Language Day, International Cannabis Day, and the 136th anniversary of the birth of Adolf Hitler. There’s a lot going on.
But of all the observances and events that will take place, only one has the potential to alter the course of American democracy. April 20 is the deadline Defense Secretary Pete Hegseth and Homeland Security Agency head Kristi Noem have for submitting a joint report to President Donald Trump about conditions at the southern border, along with their recommendations for invoking the Insurrection Act of 1807 and the National Emergencies Act of 1976.
Hegseth and Noem were given this task by a presidential proclamation declaring a state of emergency at the border, and an accompanying executive order (EO No. 14159) that Trump issued on Jan. 20. The edicts gave the department leaders 90 days to reach their conclusions. Both are based on the theory that the U.S. faces an invasion of undocumented migrants on its southern flank, and are part of a larger set of 51 executive orders, 12 memorandums, and four proclamations Trump promulgated on the first day of his second term.
If any of this comes to pass, it won’t just be undocumented migrants, foreign students, asylum-seekers, and suspected gang members who end up in the crosshairs.
There are some fine distinctions between EOs, presidential memoranda, and proclamations—principally, that EOs are directed specifically at federal agencies and must be published in the Federal Register while the others need not be—but the order and the emergency proclamation work as a package and must be read in tandem. EO 14159 is entitled “Protecting the American People Against Invasion.” It begins, in the histrionic fashion of the 47th president, blaming former President Joe Biden for the breakdown of our immigration system, declaring:
Over the last 4 years, the prior administration invited, administered, and oversaw an unprecedented flood of illegal immigration into the United States. Millions of illegal aliens crossed our borders or were permitted to fly directly into the United States on commercial flights and allowed to settle in American communities, in violation of longstanding Federal laws.
Many of these aliens unlawfully within the United States present significant threats to national security and public safety, committing vile and heinous acts against innocent Americans. Others are engaged in hostile activities, including espionage, economic espionage, and preparations for terror-related activities. Many have abused the generosity of the American people, and their presence in the United States has cost taxpayers billions of dollars at the federal, state, and local levels.
To combat the invasion, the EO calls for the formation of joint interagency task forces to expand the use of expedited removal (deportations without hearings) of the undocumented, deny federal funding to “sanctuary” jurisdictions, impose criminal and civil penalties on undocumented persons who fail to register with the federal government, and to devise a plan to carry out such measures within 90 days.
The EO does not specifically mention the Insurrection and National Emergency acts, but the proclamation cites both statutes as sources of presidential power. In addition to the 90-day reporting deadline, the proclamation authorizes the Defense Department to complete construction of the border wall, and to deploy the Armed Forces and National Guard to assist Homeland Security to obtain “operational control” of the border.
Although the proclamation and order seem limited on their face to the immediate southern border, legally they apply to a much broader geographical area. Even without the new initiatives, federal law gives U.S. Customs and Border Patrol the power to conduct searches and make arrests within an “expanded border zone” that extends 100 miles from any external international boundary. According to the American Civil Liberties Union, some 200 million people live within the expanded zone, including everyone residing in New York City, Los Angeles, Chicago, and the entire state of Florida. In the interior of the country as well as in the expanded zone, Immigration and Customs Enforcement (ICE) wields the power of arrest.
There have been other periods of immigrant scapegoating and persecution in U.S. history, but this is the first time that immigration enforcement has been officially linked by presidential decrees to the Insurrection Act.
Originally adopted in 1792 as the “Calling Forth Act,” the Insurrection Act on the books today authorizes the president to deploy the Army and deputize the National Guard to suppress insurrections, rebellions, instances of civil disorder, and unlawful “combinations or assemblages” that obstruct the authority of the United States or the ability of any state to enforce the law.
The Insurrection Act operates as an exception to the prohibition of the domestic deployment of federal troops, as codified in the Posse Comitatus Act of 1878. It has been invoked 30 times. In the 19th century, Abraham Lincoln utilized the act in response to southern secession at the outset of the Civil War; and Ulysses S. Grant used it during Reconstruction to respond to the rise of the Ku Klux Klan. In the 20th century, Woodrow Wilson used the act against striking Colorado coal miners; Herbert Hoover used it against “Bonus Army” protesters in Washington, D.C.; Dwight D. Eisenhower used it to enforce the integration of public schools in Little Rock, Arkansas; and George H.W. Bush used it in response to the 1992 riots in Los Angeles.
Trump threatened to invoke the Insurrection Act in 2020 to quell mass demonstrations related to the murder of George Floyd, but reportedly was restrained from doing so by former Joint Chiefs Chairman Gen. Mark Milley and other “grown-ups” in his first administration. This time around, the grown-ups have left the building. There are no restraints.
Invoking the National Emergencies Act poses additional dangers in Trump’s hands, allowing him to unilaterally activate an estimated 150 statutory powers. These include the authority to waive the minimum comment periods for proposed regulations, seize American citizens’ assets without due process, and, perhaps most alarming of all, shut down or take over private communications systems.
If any of this comes to pass, it won’t just be undocumented migrants, foreign students, asylum-seekers, and suspected gang members who end up in the crosshairs. We could all be at risk.
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