DEMOCRACY WATCHPresidential Discretion and the Insurrection Act

By George Croner

In Trump v. Illinois, a majority of the Supreme Court ruled that before federalizing the National Guard under 10 U.S.C.§ 12406(3), the president likely must show that he is unable to execute federal law with the regular active-duty forces of the U.S. military. However, the Court also determined that § 12406 is not excepted from the demands of the Posse Comitatus Act, which prevents the U.S. military from participating in the execution of federal law, rendering this provision of the statute essentially unusable in the president’s efforts to enforce his immigration policies. The Supreme Court ruling capped a year of litigation precipitated by the administration’s efforts to use § 12406 to federalize the National Guard to pursue its immigration activities in Los Angeles, Portland, and Chicago. With its ruling on § 12406(3), the Supreme Court further diminished the president’s ability to directly interfere in domestic activities in pursuit of his most controversial policies. With the midterm elections looming and § 12406 now unavailable, the likelihood of the current president resorting to the Insurrection Act, the statute affording him the most oppressive domestic suppression capabilities, has only increased.

For years, President Trump has pushed a harmful narrative about “rigged” elections. Since taking office in January 2025, the Trump administration has embarked on a systematic campaign of activities designed to undermine the integrity of the upcoming midterm elections. As the midterms in November approach with the distinct possibility of Republican losses in Congress, there is growing reason to anticipate that the president may reach for the most draconian device in his nefarious toolbox to prevent that outcome. By invoking the Insurrection Act, President Trump could dispatch the regular military, the federalized National Guard, federal law enforcement or, arguably, even ICE agents to sites, including polling stations, throughout the country based on his determination that rebellions, or conspiracies, or unlawful combinations were interfering with the midterm elections. With a Republican Congress disinclined to rein in the president’s most zealous and overreaching use of this dangerous statute, it will likely fall to the courts to interpret what the provisions of the Insurrection Act actually mean, and how much deference the president should receive in interpreting those terms. The outcome of the midterm elections and the future course of American democracy may well depend on those judicial determinations.