What to do if the Insurrection Act is invoked

This article What to do if the Insurrection Act is invoked was originally published by Waging Nonviolence.

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With President Trump constantly flooding the zone, there’s a chance to think ahead about the possible implementation of the Insurrection Act. One of Trump’s presidential actions calls for the Secretary of Defense and Homeland Security to submit a joint report by April 20. The report will offer “any recommendations regarding additional actions that may be necessary to obtain complete operational control of the southern border, including whether to invoke the Insurrection Act of 1807.”

President Trump loves direct control and so it strikes me that invoking the Insurrection Act is very likely. This occasionally used provision empowers the president, with few legal limitations, to deploy U.S. military and federalized National Guard troops inside the country.

Part of Trump’s power resides in constantly growing the myth he can get away with anything. Even when he loses or retreats, he buries the news cycle, with the goal of leaving people feeling more fear than awe. So, when we first hear about the Insurrection Act, it may trigger our alarmism. But better to face it now, before it comes, than learn about it on-the-fly. 

With that in mind, I’m going to walk through some mechanisms of the Insurrection Act, then offer lessons from previously held strategy sessions I took part in that played out various scenarios. I will also offer a few suggestions for activists about what to do about it. 

What is the Insurrection Act?

The Insurrection Act is a dusty law that has gone without updates for 200 years. The original text states: “That in all cases of insurrection, or obstruction to the laws… the president of the United States [can] call forth the militia [or armed forces] for the purpose of suppressing such insurrection.” (Technically, it is now not just one law but a series of statutes in Title 10 of the U.S. code.)

One might wonder what the law defines as an “insurrection,” and it’s woefully undefined. Updated modern language merely calls it “unlawful obstructions, combinations, or assemblages, or rebellions.” While the Supreme Court has upheld that the president alone can decide the meaning of these words, it reserved for itself a chance to review the constitutionality of the military’s actions. But the courts would have to enforce that provision.

Notably, the Posse Comitatus Act — which blocks the military from being involved in civilian law enforcement — is suspended under the Insurrection Act. The role of the military is to “assist” civilian authorities, but not replace them (so this is not technically martial law). 

In theory, Trump could order the army to go door-to-door searching for undocumented residents. The Coast Guard could aggressively patrol the border. Marines could be asked to shut down legal protests. Then the actions would be subject to federal court review on their constitutionality.

The Insurrection Act has been used a lot: President Lincoln in the civil war, President Grant against the Klu Klux Klan, President Johnson to end school segregation, and most recently, President Bush invoked it during the L.A. riots.

As legal experts have said, the door is wide open for abuse.

What Trump might do

Almost 10 months ago, I joined a tabletop scenario run by the advocacy group Brennan Center for Justice. One scenario was Donald Trump invoking the Insurrection Act (on day one) to secure the border and supplement ICE’s ability to make arrests of undocumented immigrants across the country.

We had political operatives and ex-military in the room who proceeded step-by-step about how the orders would unfold. It was sheer chaos with some key lessons.

In our scenario, when Trump ordered door-to-door raids the military balked. Its leaders were unhappy having their personnel emerging from warzones in Afghanistan and Iraq — who don’t know constitutional rights — interact with civilians. Ranking military knew it was a dangerous cocktail.  

As I recall, NORTHCOM (the combatant command responsible for homeland defense) took the order, sent it to lawyers over at the Judge Advocate Generals as a delay tactic. But JAG unhelpfully approved it right away. So NORTHCOM came back with insufficient plans for the full-scale operation Trump envisioned. 

They willingly sent troops to the border — an easy success for Trump to show — but kept their troops away from interactions with civilians.

This was not good enough for Trump in our simulation. Frustrated, he tried to rearrange the military so he could give direct orders to activate National Guard troops and parts of the army, now reordered under his Department of Defense. Sorting out a new team took some time. That was slowed down by a few mid-tier military officials, largely through extensive debates about how to pay for the unfunded and expensive operation. They were eventually fired.

In our scenario, the troops were duly ordered to work in coordination with ICE. But as an accommodation, their orders were largely related to surveillance — and they did so somewhat ineffectively. 

Frustrated, Trump deputized right-wing militias to help on the border. (Private military contractors have a real, leaked $25 billion proposal to do this.) Here it got dangerous fast. Private militia swarmed the border. In our scenario, the militia (I happened to be playing them) got too aggressive and ended up shooting eight people who were crossing. A videotape of it leaked. This created public outrage. The courts suddenly kicked into gear, and — in our scenario — Trump fired the militia quietly (declaring them a massive success!) and turned back to the trained military. 

Here were some of the broad takeaways from our exercise: The courts were fully ineffective at slowing things up early (and could only win cases after constitutional violations). Trump, as usual, would claim massive powers to act with impunity and shock his opposition, but his actual ability was moderately restrained by a reluctant military and public outrage. Our scenario did not play out beyond this point.

What are we to do?

Almost a year ago, I published scenarios of a Trump presidency in an interactive guide “What If Trump Wins.” One scenario explored Trump ordering the Insurrection Act on day one of his presidency. So, I am surprised he’s waited this long.

If Trump’s regime was stacked with brilliant (but ruthless) tacticians, use of the Insurrection Act would be merely a prelude to a greater restriction of freedoms beyond the border, culminating in the use of the military against protesters in blue-state cities. (A worst case scenario of this has been written about here.)

While Project 2025 is a roadmap, I’m less convinced of their ability to plan long-term. SignalGate and self-defeating tariffs via “instinct” should avail us of that. And crucially, the sycophants at the top do not have the trust or knowledge of their institutions. Secretary of Defense Pete Hegseth can give orders, but his ignorance limits his ability to move things through the bureaucracy.

Perhaps the delay in invoking the Insurrection Act has been to make sure Trump’s people are in place. More than anything, they’re winging it — move fast, break things, don’t apologize, keep breaking things.

One should note the narrowness of Trump’s proclamation that could lead to the Insurrection Act being invoked. It’s framed as being used for “operational control of the southern border” — not broader mass deportation or, what some of us feared, targeting nearly all anti-Trump political activity.

This means the Insurrection Act may be initially more focused. Folks on the border will bear the brunt of further militarization — despite an already heavily militarized border where crossings have dropped dramatically.

Trump’s desire to criminalize protests against him is obvious. ICE is effectively kidnapping green card holders who have only exercised their freedom of speech, such as Mahmoud Khalil and Rumeysa Ozturk. One executive order attempts to criminalize protesting in Washington, D.C. And the FBI is on a McCarthy-like venture looking for “domestic terrorism” among anti-Tesla protests.

It therefore appears that Trump would relish the opportunity to use the Insurrection Act more broadly against opponents. If the first move is somewhat limited in scope — e.g. the border and ICE enforcement — he will look for a violent spark that he can claim as pretext to expand the scope more widely.

Violence at protests would be the quickest way for him to get there. This could take the form of protesters engaging in disciplined acts of property destruction, but better for Trump if there were scenes of bloody street fights. If his opponents don’t hand it to him, prepare for him to egg on already twitchy counter-protesters or use agent provocateurs. Violence in the streets feeds Trump’s strongman image.

This is consistent with the authoritarian playbook. Authoritarians love some violence in the street. It allows them to swoop in with crackdowns they claim will protect the population from criminals. In fact, ordinary scared people may even call for crackdowns to “restore peace.” 

To make these moves backfire, we can actively project calm and communicate a commitment to order, kindness and nonviolence. We can use positive messaging and calmly explain the likelihood of future repression in a way that reduces fear. We can behave in ways that inspire, like mass dancing in the street or standing clearly for values like Sunrise Movement’s protest with school desks outside the threatened Department of Education.

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If they can’t bait the movement into violence, then they’ll almost certainly instigate it. In 1990’s Serbia, Slobodan Milošević called upon the paramilitary to show up at the same date and location of planned opposition protests. When inevitable violence happened, he’d order the military to crackdown severely on protesters. This seems like a playbook Trump would know how to follow.

Once a pretext is declared, our fight cannot be internally about how we got there. Whether there is violence by agent provocateurs or frustrated folks from our side, we have to seek unity amongst the broadest coalition. Our response has to be swift and unified. We need to loudly condemn all state sanctioned violence, including physical attacks, threats and inequality that have pushed us to this moment, saying: “The gross acts of violence are on one side: the kidnapping of protesters, the bombing of civilians around the globe, and the assaults to the Constitution. We decry all violence and Trump’s attempts to divide us. We are a peaceful people who want freedom.”

If Trump uses the Insurrection Act, the ways to constrain him are largely by public pressure, a reluctant military and courts, after gross violations. Political strategist Anat Shenkar-Osorio has defined three strategies for public pressure in these times: refusal, resistance and ridicule.

1. Refusal: Few of us are situated to encourage the military’s refusal to obey unethical orders. It’s the most top-down institution in our society. Still, while many of the top military and its lawyers may now be toothless loyalists, officers are positioned to gum up orders. Some of this is happening already, as veterans and others are talking to folks in the military. More of that will be needed by those in a position to influence the military.

Another method of refusal comes from our scenario planning sessions. It’s based on the technicality that the National Guard cannot be activated twice. So governors can activate their National Guard (even without orders) and then the federal government can’t repurpose them.

Among border states, one could conceive of Democratic governors in California, New Mexico and Arizona (but not ruby-red Texas) calling up the National Guard by mid-April, before the Insurrection Act is invoked.

2. Resistance: To date, Americans have engaged in an awful lot of resistance. Our protests have been far more numerous and frequent than in 2017 — with over two times more protests in 2025 than 2017. (Does this surprise you? Then complain to your media sources and follow Waging Nonviolence and Resist List on Bluesky.)

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Resistance is alive and well in the United States

Resistance should start with updating know-your-rights trainings when interacting with military — reaffirming protest laws and jurisdiction, and remembering that military officers and rank-and-file know little about constitutional rights to protest. 

Because of that, we should learn to document, document, document. Video tape everything — for your protection, the inevitable court cases and for stoking public outrage. 

A reminder of how extreme this can get comes from Portland, where Trump ordered terrible crackdowns on protests by federal troops in 2020. Unidentified federal forces scooped up protesters and threw them into vans. National outrage was dimmed by the narrative that protests in Portland were violent. This is a further reminder of how petty violence is the spark the administration wants — and how we need a simple message: “We are not violent, Trump is.”

Governors can assist now by placing the frame back on the real crises people are living through. They can activate their National Guards to address housing and affordability crises or assist with the depleted efforts of FEMA and CDC from DOGE’s cuts. This is both tactical and reframes the issue.

Should those of us concerned about Trump’s actions organize a mass protest right after an Insurrection Act is ordered? My current thinking is no. Rushing to the streets with future fears, especially if his order is somewhat targeted, will likely backfire. The vast majority of Americans see border security as a legitimate issue. Shouting “fire” isn’t the only way to get people out of the building.

3. Ridicule: Thankfully, we have yet another option. In the face of the overwhelming terror, this is something we’ve seen less of. There have been ads mocking Musk: “Tesla: Now with white power steering” or “Tesla: goes from 0 to 1939 in 3 seconds — the swasticar.” There’s the hack into government offices with an AI video of Trump kissing Musk’s feet. Or the TikTokers “hunting” Tesla’s with anti-Musk messages (“The most recalled truck in 2024”).

But there’s so much more ridicule that can be done. I’m raising options here hoping we can open this box more. It’s important because folks are going to tune out if nearly all of our moves are decry, decry, decry.

Humor is important for our psyches — and to take fascists down a notch. Beautiful Trouble reports on the Clandestine Insurgent Rebel Clown Army — trained by professional clowns — who “filled their pockets with so much strange junk that it took hours and lots of paperwork when stop-and-searches occurred. A favorite tactic was to walk into army recruitment agencies and, in a clownish way, try to join up, thus causing so much chaos that the agencies had to close down for the day, and then [the clowns] would set up their own shabby recruitment stall outside.”

Humor is key for morale and exposing the vulnerability of the strongman image. When Russia effectively banned protests, activists in the Serbian city of Barnaul organized a “toy protest.” Lego characters and tiny figurines took to the streets. (The humor only grew as the police clumsily “arrested” all the figurines.)

After Milošević accused the nonviolent movement Otpor! of terrorism, they organized “terrorist fashion shows” — where regular folks stood up in their casual every-day wear. (“Clearly a terrorist — look at his glasses! He must be a reader.”) Or after their offices were raided, they made a very public “reentry” into their building with a moving van full of boxes. Media trailed them. As expected, police stopped the van and took the boxes. This turned to humiliation, as police lifted the boxes … and found them all empty, leaving Otpor! the opportunity to say: “They are fearful of everything.”

I’m hoping some ideas may be brewing for you. What about Tesla “test drives” with disorderly clowns? Toy protests along the border? What if we appear with empty boxes after the Insurrection Act is invoked with “insurrection” scrawled on the outside?

Or, we could go in a totally different direction and have people applaud the move! A bunch of us simultaneously come out with press releases saying, “We’re so glad Donald Trump is finally going after insurrectionists. We assume he’s going to declare his pardons of Jan. 6 insurrectionists null and void and then, remarkably, turn himself in.” This brings the frame back to his lawlessness, and it brings up one of his most unpopular acts to date: pardoning Jan. 6 insurrectionists. 

Folks could amplify this call with street theater with pictures of Trump and the Jan. 6 insurrection, and signs saying “We’re with Trump. Get the insurrectionists!” Some could go to the border and hand maps to military officers with the location of the insurrectionists (“Washington, D.C.!”) — and be utterly confused about why undocumented folks are getting targeted.

The image we want to raise is one that contrasts law-abiding undocumented folks woven into our community versus the lawless cabal of mostly white men that Trump lifts up as heroes. This is the contrast that helps us build public outrage. 

Admittedly, this won’t stop bad things from happening — at this stage there’s no strategy that assures that. But setting ourselves up with a storyline we keep telling helps us stoke public outrage — so that when awful things happen we can move people to action.

All of this is bigger than just decrying Trump’s use of the Insurrection Act, which risks just sounding shrill. We need to pitch the bigger story and spark actions about more than just the potential risks of the Insurrection Act. Yes, this is about law and respect for each other. This is about the fear that Trump and his lawless brothers-in-arm are trying to provoke. 

By adding a little ridicule into our mix, we can help shake up and shape that story.

This article What to do if the Insurrection Act is invoked was originally published by Waging Nonviolence.

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Source: https://wagingnonviolence.org/2025/04/what-to-do-if-the-insurrection-act-is-invoked/