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insurrection act
Trump Slammed Over Plans for National Emergency and Mass Deportations
"Mass deportations aren't just inhumane," one congresswoman said. "Trump has a recipe for economic disaster. Farmers, workers, and consumers... all pay the price."
Nov 18, 2024
Migrant rights advocates on Monday sharply criticized U.S. President-elect Donald Trump after he confirmed plans to declare a national emergency and use the military to pursue his long-promised mass deportations, despite legal and logistical barriers.
Shortly after Trump's electoral victory earlier this month, Tom Fitton, president of the right-wing group Judicial Watch, welcomed reports that the incoming administration is "prepared to declare a national emergency and will use military assets to reverse the Biden invasion through a mass deportation program."
Fitton's post was on Trump's platform, Truth Social. The president-elect responded early Monday, simply saying, "TRUE!!!"
While Trump didn't provide additional details on Monday, fearmongering about immigrants has been a priority for the president-elect since he entered politics during the 2016 cycle and recent reporting has previewed what could come when he returns to the White House after campaigning on a pledge to "launch the largest deportation program in American history."
In the latest elections, Republicans retained control of the U.S. House of Representatives and reclaimed a Senate majority, but Democrat Yassamin Ansari had a decisive win in Arizona's 3rd Congressional District. She said Monday that "Trump's plan to use the military to aid mass deportation is abhorrent and hateful, and will directly impact many of my constituents in AZ-03. Using the world's strongest military to target the most vulnerable community is not leadership, it's abuse of power."
Vanessa Cárdenas, senior director of communication for America's Voice, similarly said in a statement that "Trump continues promoting anti-immigration hate and is using it as an excuse to appropriate the military for domestic law enforcement and circumvent normal checks and balances on presidential power."
Cárdenas continued:
Trump and allies are attempting to justify their potential use of the military to conduct indiscriminate mass raids and roundups by wrapping it in the language of 'invasion' and the false notion that America is under assault, and it must be repelled by force. Yet just because Trump and allies have spent recent years normalizing this idea and making this assertion doesn't make it any less radical. Let's be clear, this is the adoption of a white nationalist conspiracy theory, already linked to multiple deadly acts of gun violence against civilians, which is driving federal policy and Republican agendas.
Despite the martial language and emphasis on the border and recent arrivals, make no mistake that the Trump team is planning to target long-settled immigrants and mixed-status families as part of their mass deportations. Having legal status and even citizenship is not necessarily a shield of protection. Their pledges to end immigration enforcement priorities, while making as many people as possible deportable, is a disturbing tell that their definition of 'criminal' will look fundamentally different from most Americans' conceptions. Perhaps most disturbingly, the resulting fear and cruelty that will be on display is likely a feature and not a bug to those in charge.
Pointing to Trump's previous term, Aaron Reichlin-Melnick, a senior fellow at the American Immigration Council, said Monday that "my lesson from the first time around is that we absolutely cannot take things that the Trumpworld people say as gospel, given their total lack of specifics and total willingness to make grandiose pronouncements that are aimed at triggering the libs and making headlines."
"The National Emergencies Act is a specific law which unlocks specific authorities to do specific things—a president doesn't declare a national emergency and then become king. And 'use the military for deportations' isn't one of those specific things," he highlighted, citing the Brennan Center for Justice guide on emergency powers.
Reichlin-Melnick acknowledged that "last time, Trump invoked a specific emergency authority to unlock military construction funding—and direct more troops to do logistical support at the border" with Mexico.
The New York Timesreported Monday that during the Republican primary campaign, "Mr. Trump's top immigration policy adviser, Stephen Miller, said that military funds would be used to build 'vast holding facilities that would function as staging centers' for immigrants as their cases progressed and they waited to be flown to other countries."
Miller—architect of the forced family separation program from Trump's first term—is set to serve as deputy chief of staff for policy in the next administration. The president-elect has also named other immigration hard-liners for key posts: Tom Homan, former acting director of Immigration and Customs Enforcement (ICE), as "border czar" and GOP South Dakota Gov. Kristi Noem for homeland security secretary.
"Mr. Miller has also talked about invoking a public health emergency power to curtail hearing asylum claims," according to the Times. Trump's team also plans to "expand a form of due-process-free expulsions known as expedited removal" and "stop issuing citizenship-affirming documents, like passports and Social Security cards, to infants born on domestic soil to undocumented migrant parents."
Additionally, the newspaper noted, Trump intends to bolster the ICE ranks "with law enforcement officials who would be temporarily reassigned from other agencies, and with state National Guardsmen and federal troops activated to enforce the law on domestic soil under the Insurrection Act."
Joseph Nunn, a counsel in the Brennan Center's Liberty and National Security Program, explained in 2022 that "although it is often referred to as the 'Insurrection Act of 1807,' the law is actually an amalgamation of different statutes enacted by Congress between 1792 and 1871" to enable "the president to deploy military forces inside the United States to suppress rebellion or domestic violence or to enforce the law in certain situations."
Congresswoman Ilhan Omar (D-Minn.) on Monday expressed concern about Trump's potential use of another law enacted in 1978.
"Donald Trump plans to declare a national emergency and utilize the Alien Enemies Act to conduct mass deportations," Omar, a war refugee, said on social media. "This xenophobia and cruelty shouldn't be allowed in America. We are going to fight it every step of the way."
As Nunn's Brennan Center colleague Katherine Yon Ebright detailed last month, the law "allows the president to detain or deport the natives and citizens of an enemy nation," and although "enacted to prevent foreign espionage and sabotage in wartime, it can be—and has been—wielded against immigrants who have done nothing wrong, have evinced no signs of disloyalty, and are lawfully present in the United States."
While Trump and his allies have prepared to use any powers they can to deport the estimated 11 million undocumented immigrants in the United States, rights advocates and reporters have warned of the consequences of their plans for not only those people, but also 20 million mixed-status families and citizens who would suffer from the economic consequences.
As Mother Jones' Isabela Dias recently laid out, mass deportations would have major negative impacts on care, food, and infrastructure while enriching charter flight operators, consulting firms, private prison companies, and surveillance contractors.
Congresswoman Jasmine Crockett (D-Texas) issued a warning after Trump's Monday post, declaring that "this will hurt all of us."
Spotlighting a Monday report in the Milwaukee Journal Sentinel, Rep. Gwen Moore (D-Wis.) similarly stressed that "mass deportations aren't just inhumane—they'd devastate America's agricultural industry. Combined with his tariffs, Trump has a recipe for economic disaster. Farmers, workers, and consumers... all pay the price."
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A 'Reichstag Moment' for Donald Trump Must Never Be Allowed
The Insurrection Act as it stands has a complete absence of checks and balances; as a result, we rely on the wisdom and good faith of a single person to uphold the important wall between military action and domestic policing.
Nov 30, 2023
Donald Trump has made clear that, in a second term, he would govern differently than any president in U.S. history. He has hinted at suspending the Constitution, building vast deportation camps, weaponizing the Department of Justice, and mass firing career civil servants.
Here’s one you might have missed: He reportedly plans to invoke the Insurrection Act, which allows the president to use the military as a domestic police force, on his first day in office.
In 2020, of course, Trump himself engineered a shambolic insurrection. This time, the thought goes, if he is displeased by protests, he will use the law as a way to crack down and grab more power. Think of the “Reichstag moment” reportedly feared by General Mark Milley three years ago.
The law is a model of how not to draft major legislation.
Much like the Electoral Count Act—a similarly archaic and poorly drafted law that Trump attempted to exploit—the Insurrection Act was written for a different time and urgently needs reform, as my colleague Joseph Nunn writes.
There’s some deep history to be aware of. In the 19th century, the military was used domestically to a wide variety of ends: to persecute Native American tribes on the frontier and capture fugitive slaves, but also to ensure Black men could vote and crush the Ku Klux Klan. It has a complicated record during a complicated century.
Congress intervened in 1878, prohibiting the president from using federal troops to enforce civilian law under most circumstances. The Insurrection Act, which dates all the way back to 1792, was maintained as an exception to this prohibition.
The law is a model of how not to draft major legislation. Key terms like “insurrection” and “rebellion” are left undefined. The language is so outdated that no modern American can be sure of its meaning. The few times the law was reformed, it was changed to give the president more power rather than less. And courts have interpreted it to grant the president exclusive and unreviewable authority to decide whether the conditions to deploy the military have been met.
There’s a complete absence of checks and balances. As a result, we rely on the wisdom and good faith of a single person to uphold the important wall between military action and domestic policing.
Trump reportedly considered activating the Insurrection Act twice during his presidency—first to quell Black Lives Matter protests and later to hold on to power after his election defeat.
The Brennan Center has proposed important reforms to the Insurrection Act. Congress should define the law’s critical terms. Legislators and judges must play a larger role in overseeing the president’s exercise of the law. There’s nothing remotely partisan about these changes—they’re common sense. Congress can and should adopt them today.
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