Let’s then take a step back. Can you talk about what the Insurrection Act is?
I think the best way to think about the Insurrection Act is that it’s the primary exception to the Posse Comitatus Act. That’s the law that normally prohibits federal armed forces from participating in civilian law enforcement. The Insurrection Act allows the President to deploy active-duty armed forces or to federalize and deploy National Guard forces to quell civil unrest or to execute the law in a crisis.
Posse Comitatus was signed into law in 1878. The Insurrection Act is an amalgamation of laws passed between 1792 and 1874. So even the last meaningful update of the Insurrection Act happened before the passage of Posse Comitatus. At the time, it was an authorization, not an exception. The Posse Comitatus Act prohibited federal armed forces from participating in law enforcement unless there is an express statutory or constitutional exception. And the Insurrection Act, which already existed, constitutes such an exception.
I recently read a piece by Jack Goldsmith basically saying that the Insurrection Act more or less gives the President power to do what he wants—incredibly broad power. Is that your analysis, too?
Well, it gives the President remarkable power. I don’t think it gives the President the power to do anything he wants. There are criteria in the Insurrection Act for deployment. Those criteria are on their face broad, and the law gives the President significant discretion. However, the Department of Justice has long taken the position that the law is limited by the Constitution and tradition, and so the department has interpreted the Insurrection Act to apply in a much narrower set of circumstances than the actual text of the law would suggest. I think that’s an important gloss.
Does it matter what the Department of Justice said in the past, given how we’ve seen the D.O.J. act in 2026?
Well, the Department of Justice tends to argue that it matters what it has said in the past. Now, of course, this Department of Justice might not make that argument, but certainly anyone challenging the invocation of the Insurrection Act will. And they won’t just be saying that the Court should defer to the Department of Justice’s past interpretations. They will be pointing out that those interpretations are in fact grounded in the Constitution and tradition.
What kind of limits has the department thought were reasonable in the past?
There is a 1964 memorandum that takes the position that the law should be invoked only in three circumstances. First, if a state requests assistance to put down an insurrection against the state government. Second, if invocation of the Insurrection Act is necessary to enforce a federal court order. And third, if state and local law enforcement has completely broken down.