Trump wants you to think invoking the Insurrection Act is more common than it is

It’s clear that Donald Trump spent a big chunk of the period between his presidencies thinking about what he would do differently if he returned to the White House. One thing he settled on was that he wouldn’t be constrained by staffers and experts who were cautioning him about precedent and the law. Another was that he would use the power of the presidency as a cudgel against his opponents, real and perceived.

This was obvious well in advance of his actual election. During his first term — and particularly after the BLM protests that emerged in mid-2020 — he’d made repeated comments about deploying the military against protesters and immigrants. His interest in invoking the Insurrection Act to deploy the military on the streets of American cities became part of Kamala Harris’ argument against his election. When that didn’t work, questions about such deployments became part of the confirmation hearings for Trump’s Cabinet.

Those concerns were well-founded. Trump hasn’t invoked the Insurrection Act, but he has federalized state National Guards to use as law enforcement. And over the weekend, he repeatedly suggested that the Insurrection Act was the next step.

“I haven’t used it but, don’t forget, I can use the Insurrection Act,” he said in an interview with his friend Maria Bartiromo. “Fifty percent of the presidents, almost, have used that. And that’s unquestioned power.”

Flying back to D.C. from (another) weekend at Mar-a-Lago, he repeated the claim when talking to reporters.

“I’m allowed as you know as president, like, 50 percent of the presidents have used the Insurrection Act,” he said. “Everybody agrees you’re allowed to use that and there is no more court cases, there is no more anything.”

He’s making two claims here, both of them false.

The second claim is that the Insurrection Act allows him to have “unquestioned power” and avoid “court cases.” It does not. The Brennan Center explained what it actually does a few years ago, articulating that it, in essence, allows the president to use the military to “execute the Laws of the Union, suppress Insurrections and repel Invasions.” In other words, to stamp out rebellions or to supplement law enforcement.

But I’d like to focus on Trump’s first claim, that about half of presidents have invoked the Insurrection Act. That’s not true.

The Brennan Center has a list of times at which the Act has been invoked in U.S. history. Over the course of 47 presidencies, it has been invoked in 19 — meaning about 2 in 5 presidencies, not 5 in 10.

The reasons for those invocations vary. Early in the country’s history, they were to put down actual rebellions — including at the outset of the Civil War. At a lot of other times, the Act has been invoked to allow a federal response to racist incidents: anti-Chinese riots, efforts by Southern states to retain segregation. In that latter case, the federal government stepped in to enforce laws that state authorities were hoping to ignore.

The most recent invocations — during the presidencies of Ronald Reagan and George H.W. Bush — were to provide additional support to states combatting unrest. Not rebellions but riots, like the ones that followed the acquittal of the police officers who beat Rodney King in Los Angeles.

Notice that an invocation of the Act during the Hoover administration was actually not undertaken by Hoover. If we remove that one from the calculus and look at the numbers by president (as Trump did) the percentage drops further: just over a third of presidents have invoked the Insurrection Act.

The most important factor here isn’t that Trump’s math is bad. It’s that he wants Americans to think that invocations of the Insurrection Act are par for the historical course, which they aren’t. He wants people to think that it’s relatively trivial to invoke the Act and that he can do so when he wants to for whatever reason he wants to.

But context matters. It’s also true that 50 percent of President Roosevelts declared war on Germany, but that’s because Franklin Roosevelt had reason to do so. There’s a reason those other presidents invoked the Insurrection Act, and it wasn’t because they wanted their political opponents to bend to their will. It was in defense of law and order, not as a defiance of it.

Another way to look at the data on the Insurrection Act is to note that no president has invoked it in more than 30 years. If Trump were to do so, as he’s hinting, he’d be breaking with precedent, not mirroring it.

Photo: Trump at his birthday parade. (White House/Flickr)