How the Insurrectionist Might Use the Insurrection Act to Go After Non-insurrectionists

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Clip: You must never, ever give up or give in. You must keep the faith and keep your eyes on the prize. That is your calling. That is you mission. That is moral obligation. That is mandate. Get out there and do it. Get in the way. Change happens because people care. The people have the power to make this life free and beautiful. To make this live a wonderful adventure.

0:00:38 Clip: I still believe with all my heart, America can be a place where no child is left hungry, no community is left behind, and no one gets told they don't belong. Country is always worth it.

0:00:58 Thomas: And welcome to Opening Arguments. This is episode 1123. It's the Super Bowl edition, get hyped, Matt, two teams are playing each other for the Super Bowl. Yeah.

0:01:11 Matt: Of them is Philadelphia, I think. Is

0:01:13 Thomas: It's Philadelphia and Kansas City, actually. I haven't watched it forever, but, uh, is pretty interesting, let me try to catch a minute of it. But it's, yeah, funny, I used to be all into the NFL, um, then like, one day I just stopped watching and then instantly instantly I forgot everything about it and don't care. It's weird. It's crazy. But we respect all those who celebrate on days like today.

0:01:30 Matt: Welcome to my life. I don't know anything about it and I've never cared. But We've managed to dodge three snowstorms in Boston coming up in the next week, and we're hanging out in Curaçao in the Caribbean. So, vacation.

0:01:34 Thomas: Well, that's Well, awesome. Awesome. You are still able to come to us. You're having a good warm time. That sounds great.

0:01:46 Matt: Been great. Yeah.

0:01:46 Thomas: Well, speaking of things that are not great, though, the country. Transitioning over to the not great. What are we going to talk about today? Let's

0:01:52 Matt: Well, we got kind of a heavy one, but I to give you some hope on this as well. But is based on something in one of the executive orders that has been standing out to me for weeks now that I've been thinking about and it is the president's intention to invoke the insurrection act so I'm going to look at the history of this act trump's history with it and where we think we might be going with all this yeah yeah

0:02:11 Thomas: Oof, the insurrection act. It's a deep dive kind of day. So that's our one story, right?

0:02:16 Matt: There's a lot to talk about it's a big one doing

0:02:17 Thomas: We better take a break and get to it. You can support the show at patreon.com/law. Please do. We Ooh, we have that lot awful movies recording scheduled. Can't wait. It's going to be fun. All kinds of good reasons to support, including, you know, actual, uh. Objective coverage of the state of our fascist, uh So all those reasons and more, please support the show, patreon.com/law, and after this we'll get to it all.

0:02:43 Thomas: Right, Matt, so the Insurrection Act is for the—okay, which fascist thing is this, the border again? I can't remember, or is he going to arrest journalists with it?

0:02:51 Matt: He's going to start on the border yeah my concern is because Stephen Miller was signaling this a couple of years ago as well. He actually told the New York Times they're looking for a reason to use the Insurrection Act at the border. And then in the executive order that was signed on Inauguration Day, the one declaring an emergency at the southern border, specifically said that within 90 days of signing this proclamation, that he's going to ask DHS and DOD to just put in a joint report about whether or not he should invoke the Insurrection Act at the border. That really caught my eye. Nobody else is really talking about this. And I wanted to talk about why this is in here and what it means for us. Also take a look at Trump's previous attempts to invoke the Insurrection Act and the way he talked about it. Because we haven't used the Insurrection Act for as long right now as ever in U.S. history. It's been 33 years since the last time it was used. And it used I it used to be used pretty frequently.

0:03:35 Thomas: Only 33 years wow so is weird because we had an insurrection recently so it's not something we used it for then?

0:03:42 Matt: We did. It wasn't really necessary because the National Guard were already called in. It didn't require the Insurrection Act because it was just sort of regular response.

0:03:52 Thomas: Because it was an insurrection. It's just a regular insurrection, so yeah. Thing that it's named after, you don't need it for, weirdly, but other stuff that has nothing to do with insurrections, you might need it For?

0:03:54 Matt: The closest No, apparently. The rules are different in D.C., as we're going to see. Yeah, and a lot of misunderstanding about it, and right now there's a hard right push to try to reinterpret it and talk about it very differently than it was ever intended. So I think it's good in our continuing attempts to educate people on what the law actually is so that we can watch maybe as they break it or as they attempt to break it, as they stress test it, I think It's good to talk about this. So, I want to go back and review the history of the Insurrection Act and talk abou why this really matters right now and why I think it's going to matter in the next couple of years.

0:04:31 Thomas: First question, what the hell is it?

0:04:33 Matt: Right.

0:04:33 Thomas: Where did it come from?

0:04:33 Matt: Well, there there is no Insurrection Act, just to make it extra helpful.

0:04:36 Thomas: Well, that's weird. I guess, thanks for listening, everybody.

0:04:38 Matt: It is pretty weird.

0:04:39 Thomas: You're done with the show.

0:04:41 Matt: It is weird. There's no one thing. It's just sort of a series of laws that's been jammed together that we just refer to as the Insurrection Acts. I'm going to go through what those are in a minute, but I just want to talk about sort of the history of how we got there and also the fact that this country really, really doesn't like the idea military enforcing domestic law, for good reason. Because you think back to 1770, the Boston Massacre, you know, British troops were sent into Boston to try to make things better, and they made things a lot worse, which is generally what happens when you try to get domestic law enforcement done by the military.

0:05:12 Thomas: That's a common message I have. It can always get worse. Do you think the police are bad, and they are. What if the military came in and tried to do that same thing? Yeah, it can get worse.

0:05:16 Matt: Try the Marines. Right, exactly. Yep, against our Marines, but this is not what they're trained for, not at all. And we'll We'll talk about what happens when they do start enforcing domestic law, because we've seen it. We've seen that happen before. You know, the Boston Massacre is one of our foundational national stories. It's one of the things we talk about is why we are.

0:05:31 Thomas: Massacres, yeah. One of our foundational massacres along with a bunch of other ones that we did.

0:05:37 Matt: That's right. Yeah. Yeah, this is the sort of beginning of the idea of police violence in America, you trying to do what we can to keep authorities from having that kind of power. The Declaration of Independence complained specifically about the crown keeping standing armies. There was such a revulsion to the idea of a standing army that it was a big debate. At the time of the Articles of Confederation, we actually wrote in the weakest possible army. It was basically they were trying to use a national defense that could do nothing more than defend the country. They didn't want it to get any bigger than that. The point that when Shays' Rebellion happened in 1786, they didn't really know what to do with it. Because they just didn't really have the ability to put it down. So this is one of the things that got things going under the Constitution they were debating this in Philadelphia about what to actually do and how to have the president and Congress interact over the military. And again, there wasn't even really the idea of a standing army at the time. If we had one, and if we're going to have military get involved with domestic affairs, wrote three things under the constitution. So I wanted to review what those were. First is kind of general, Article 4, Section 4. The United States shall guarantee to every state in the union a republican form of government, that is capital-R Republican, but not state party based, and

0:06:41 Thomas: Surprised they haven't tried to use that yet.

0:06:43 Matt: Know it's it's right there in the constitution um

0:06:45 Thomas: Says here, yeah, less stupid than a lot of their interpretations of things, Matt, the same amount of stupid, I guess.

0:06:50 Matt: It's literally there uh uh, shall protect each of them against invasion, which has been coming up a lot of course in the context of the border, and on the application of the executive, when the legislature cannot be convened, against domestic violence. And that's the idea of obviously some sort of insurrection or rioting. That's the general promise the Constitution makes, is that the federal government shall guarantee that we will not have our forms of government interrupted, that we can put down invasions, that we can put down domestic violence if necessary. The way that they did this was pretty smart, I think. They didn't want either Congress or the the president having complete control of the military. In Article 1, Section 8, the Congress is giving the power to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasion. Then in Article 2, Section 2, the president is appointed, famously, the commander -in -chief of the Army and Navy. I do want to point out, I've always thought this, the Air Force is unconstitutional, let alone the Space Force, force because not mentioned. The way, a lot of the stuff we're talking about also applies to Space Force. They've jammed it into all of these bills, which I think is very funny to consider as we

0:07:50 Matt: Go through some of these examples.

0:07:51 Thomas: Get Space Force in on the border. Great.

0:07:55 Matt: They're going to be, you know, enforcing our atmosphere, I guess, the atmospheric border.

0:07:58 Thomas: Have a critical question for you. Is it Commander -in -Chief or Commander -and -Chieve? That's the most important question I have.

0:08:06 Matt: In chief.

0:08:07 Thomas: Thought. But then I thought it was what, you know, when you get those like reverse debunks of a debunk and then someone says, oh, no, actually it is Commander -In -Chiev. And then you're like, wait, now I don't remember what level of debunk I was on. Because that, okay. So Commander -IN -ChIEF.

0:08:18 Matt: I'm I'm looking at the actual constitution as I talk to you, so

0:08:21 Thomas: Good. I'm glad that's what it is.

0:08:23 Matt: That always helps. It does

0:08:25 Thomas: At the part where it says, irregardless of anything else, it's commander. Sorry.

0:08:29 Matt: It the point, though, that even after these provisions were put in, the states were still concerned because they still remembered how things went down at the British. So there was a call to kind of get a Bill of Rights going so that we could do things like make sure that the militias had the right to have firearms, famously just militias, and the Third Amendment of course to make sure you can't quarter troops, which has never been used. There's never been an actual published case that I'm aware of involving the Third Amendment. Passed the Calling Forth Act in 1792, which kind of is the predecessor to the Insurrection Act and it gave president pretty broad power if necessary to put down rebellion and I don't know if you're aware of this but this is one of my favorite presidential facts um george washington personally led the troops in 1794 it's the only time that u .s president has ever personally led troops into battle um if

0:09:13 Thomas: That should have been the precedent set forever. Really? I feel like if we're going to do a war, like the president has to be like first.

0:09:16 Matt: Youre gonna call it that's right right out front on your horse. And actually marched across Pennsylvania. It took him like a month to muster a militia and march across. By the time he got there, everybody was scared off because they heard that Washington was coming. It worked. And Washington so intent on making sure we didn't have a standing army, he actually immediately dissolved that militia, even though Congress had given him three more months to use it if he wanted to.

0:09:36 Thomas: Right. I want to ask a stupid question. What's a standing army? Because I feel we have a standing Army, but maybe I don't know what that is or.

0:09:44 Thomas: Oh, we do now. Oh OK. So at the time. But that's so weird because back then, I mean, I feel like there's a lot more reasons to have a standing army. I

0:09:52 Matt: We do. Technically speaking, the .S. Army was recognized in 1789 under the first Constitution, but they didn't really do much with it, my understanding. The point that for World War I, we didn't have an army to send over, and it would take a lot of time to call people up. But now, of course, we have the world's largest standing army, and far, by many times. Times. Just the Whiskey Rebellion, which I was just telling you about, where led troops into battle. There were a couple of different times when troops had to be called in, sort of before there was a formal insurrection act. Most famously, though, during Reconstruction, that we used the military routinely to put down the largest terrorist organization in the country, the Ku Klux Klan. The Ku Klux Klan Act of 1871 actually required the president—he had a duty to call on the troops when equal protection rights were being violated. Was very, very annoying to the Southerners. They did not like having the U.S. Army occupying them.

0:10:37 Thomas: So after a little little while, we said, nevermind, that's too hard.

0:10:40 Matt: We did, actually. It Was actually the Posse Comitatus Act of 1878, which was passed after the extremely contentious election between Tilden and Hayes. You might know it's one of the worst in American history. History. Was a lot of thought that Hayes actually won the election because there were federal troops stationed at voting polls. They as a compromise, Hayes immediately allowed Congress to pass the Posse Comitatus Act and signed off on it. And that made it illegal, in most cases, for any any domestic military operations to do any kind of law enforcement. So it made it that much harder. The Insurrection Act became the only exception to the Posse Comitatus Act. And there's an interesting phrase in here, though, that's got some debate about whether except in cases and under circumstances expressly authorized by the Constitution. As we're just discussing, there is no circumstance authorized by the Constitution, it's just clearly not in there, in which the president can just call up the Army or Navy by himself. Do any kind of domestic law enforcement or act of congress so they left that open that congress could allow in different circumstances as we'll talk about to willfully use any part of the army navy the marine corps the air force and they've added the space force as a posse comitatus which means the power of the county so that's kind of goes back to old times when the sheriff could just round up a bunch of local men over 15 and make them chase down a criminal basically um actually goes back to like 1283 when there's something called the hue and cry where you'd actually if somebody started yelling like go get that guy everybody had to go get that guy and if you didn't participate

0:12:06 Matt: You're in trouble yeah and you could call the hue-and-cry like between counties you could just like right ahead and start yelling about how there's a felon coming um so

0:12:07 Thomas: Different times. Mean, pre -internet, they had to... Some of them was like a chain email. It was like, if you don't catch that guy, then curse on your family. And they had to spread it back.

0:12:16 Matt: Had to do some loud yelling back then.

0:12:25 Matt: That's right. You could actually be prosecuted. Especially was very popular in the Western states, that a sheriff could round up, you know, famously, like in the westerns, could get a posse together to go to catch an outlaw. They really did not want the military being used for domestic law enforcement. That was really the crux of it. And it was the South that was especially concerned about this, because the military had gotten involved in state politics, mostly just to enforce the 14th Amendment to make sure that equal protection was being respected and that the new rights of the newly freed people would be upheld. It applies to all the federal military branches, as I said. So technically, they jammed Space Force in there. And I can't imagine a situation right now in which Space Force would be used as part of a posse comitatus, but it could

0:13:03 Thomas: It's where you say, hey, get that guy. But then you're angled like up a mountain. So then it's, oh, shoot, we launched our hue and cry into space and

0:13:10 Matt: When Elon Musk becomes an intergalactic fugitive, I don't know, chase him down. Make them feel included. So they're included now in the Posse Comitatus Act. Also applies to the National Guard when president federalizes them. We'll talk about how that works pretty soon here. But it up the National Guard because they're allowed to step in and take control when there's disasters or riots or things like that. But we're most concerned about federal law enforcement enforcement doing any kind of local or domestic enforcement. So really what it's about. A lot of case law about how the military might cross the line if it goes over into enforcement, because of course we do allow indirect support assistance. And the last four presidents have all sent all sent National Guard down to border, for example, and the Biden administration, there's like a a tortured 28 -page memo looking at whether the National Guard could assist CBP in inspecting rail cars and shipping containers. Like, they had to go through this lengthy analysis. It could not be further from the way that Trump is talking about this stuff. They decided they could.

0:13:14 Thomas: There you go. As I heard that I couldn't believe that you probably already knew about was when Trump said, oh, a couple of things, is going to send the military to the border. And I want Mexico to send their military to the border or whatever. It turned out that Biden had also done those things like in the beginning of his administration.

0:14:23 Thomas: I think it was those two things. Again, it just goes to show, for one, we're not informed at all on this. For two, stop doing the things that they're going to do anyway out of some hope that we're going to score points for it. It didn't make any difference. No one knows about that. No one voted on the basis of it. I mean, maybe some of it was necessary because there was a huge rush. I don't know. But like you could tell me, but unless it's actually necessary to make people's lives better, we need to stop trying to score invisible Republican points that aren't going to do anything. We don't get credit for it doesn't matter. Do what's right. Yeah,

0:14:55 Matt: No, and I agree. And It's also good to know the difference because this happens a lot with immigration too, as you know, where people are getting really upset about things that we've been doing for decades, that every president has done. I think it's good to sort of know where the lines are. I do think the difference was that Biden didn't use active duty military troops. I think he was just using national guard. I could be wrong about that. This, this new order allows that, which I think is very bad for reasons we'll talk about. Yeah, no, every president has done it and has has used the military at the border in one way or another.

0:15:22 Thomas: Also got Mexico to, drop troops to the border. I, and so it's looked at as this huge victory. Trump had to threaten tariffs to get this concession. It's like, oh, actually Biden also did that by not threatening tariffs. That's weird how that worked.

0:15:25 Matt: Right. A lot lot of pressure on them.

0:15:34 Matt: Yeah. Congress has created three big exceptions to the Pasa Comitatus Act. First was allowing the Coast Guard to do domestic law enforcement, because the Coast guard is kind of a hybrid military agency that already does law enforcement. There's some legislation on information and equipment sharing under the Cooperation Act. Then there's the Insurrection and about 25 other related statutes that have of minor exceptions, but I want to talk most about the Insurrection Act and what it actually is and how it works. We should talk about the National Guard, which I think people are aware is a unique kind of state -based system that replaced militias. There's only three ways the National Guards can be called up. First is under Title 32 by a governor of a state, and that's generally going to be for emergency management assistance. The Emergency Management Assistance Compact actually allows the governor to send National Guard to other states. Unfortunately, 14 did to his stupid border efforts, certainly unconstitutional there. You look at something like Hurricane Katrina, where many states sent in help, and there was an active debate in the Bush administration about whether they should just send in military when they hadn't been requested, and that was determined to be unconstitutional because the law specifically requires that the governor actually ask for it. Eventually she did. Then there is the idea of federalizing the state national guard and putting them under the control of the federal government. And that's really going to be only in extreme circumstances, which we can talk about. And in some case, There's kind of a hybrid status. And there's an interesting case study about 2020, when a lot of the stuff we're talking about here during the George Floyd summer, when Trump was really intent on trying to put down protests, whether or not the governors wanted it. The one thing they could do is use the D.C. National Guard, because D.C. National Guard doesn't report to a governor. They report directly to the president. So Trump called them in during those protests and also requested help from other states. About 11 states kicked in guard members, about 4,000 people. Once they're in D.C., executing a federal mission, they're automatically under federal control. They've been federalized in a hybrid kind of way. And famously, of course, you have the protests in Lafayette Park, where you have tear gas, where you've got the helicopter dive-bombing people a lot more than the military should. The point that Mark Esper, the Secretary of Defense at the time, publicly said that Trump should not invoke the Insurrection Act and he ended up having to leave over it. I think that's very concerning

0:17:41 Matt: That we lost a Secretary of Defense over that dispute. It's not something the president should really be arguing about. Can hear what Trump said about it on June 1st, 2020. I think this is worth playing.

0:17:52 Clip: If a city or state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them. I am also taking swift and decisive action to protect our great capital, Washington, DC. What happened in this city last night was a total disgrace. As we speak, I am dispatching thousands and thousands of heavily armed soldiers, military personnel, and law enforcement officers to stop the rioting, looting, vandalism, assaults, and the wanton destruction of property. We are putting everybody on warning, our seven o'clock curfew will be strictly enforced.

0:18:47 Clip: Those who threaten innocent life and property will

0:18:46 Thomas: O'clock, geez, rough it's like when I'm starting my day

0:18:52 Matt: The first part, Trump is not authorized to do at all. The second part he is. So he's talking about D.C. in a curfew, a National Guard coming in. That's something he's allowed to do. He overdid it, but it's within the president's power to control the D.C. National Guard. But he repeatedly threatened to send in the National Guard whether or not states wanted it. And that is very concerning because I think that's something he's going to try to do again. So I just want to talk about how it's supposed to work. And we'll just go through the different sections of the Insurrection Act and you can see exactly when it's supposed to be used and how. Know, as I said, it's been 33 years since the last time it was used. And just for context, the very last time It was used was in 1992 in LA after the Rodney King riots. Know, it was to the point that 10 ,000 members of the California National Guard could not control the situation. So the governor requested the president send in troops. And they sent in 2000 Army soldiers and 1500 Marines. And for several weeks, essentially, I mean, it's the closest that they got to martial law. Martial law isn't really a thing, even under the Insurrection Act. It's not really something that the president has any authority to declare that really exists under U.S. law, fortunately. But you had, it's hard to imagine now, but you had Army and Marine troops supporting law enforcement in things like responding to domestic disturbances. And there was one famous example where a local cop was running into the house to try to solve this domestic disturbance. And he yelled, cover me, to the troops who were behind him. And they just started shooting into the House because that was what their training told them to do. It's terrible. Nobody

0:20:17 Matt: Got hurt yeah to provide covering fire that was how they interpreted that yeah uh and

0:20:17 Thomas: What cover me means what oh boy look to your very early point that maybe they shouldn't be doing this but yeah I I get that that situation uh we got a little out of hand but oh oh the other thing they could have done though to solve that is just not um Have really, really, really racist police who then beat a black man and get like almost no punishment for it. That's the other option. Seems cheaper to me to do that. Just budget wise.

0:20:40 Matt: It would be um but that's didn't didn't go that direction um

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0:22:13 Matt: Yeah, no, and generally the military agreed after the fact, after reviewing everything, that it was not great to have done any of that, um, maybe they shouldn't, it's not what they're trained for. It's not what they're supposed to be doing at all. And the National Guard, generally speaking, does not want to be doing this either. There's been multiple statements from leaders of National Guard saying that they do not want to be doing domestic law enforcement. They don't want to be acting in any way against their own people. And, you know, there's a very long history here going back to Kent State, right, where four college students were killed during Vietnam protests by National Guardsmen. And that was a huge overaction. It was considered to be. And you know that was to the point that, uh, changed the course of the war, and Nixon was actually personally affected by it apparently. But it's supposed to be for extreme circumstances that you actually use the Insurrection Act. And H.W. Bush is the only president to use it in our lifetimes, not just in '92, but he also used it in 1989. He sent, uh, marshals and military police down to the Virgin Islands, not the worst assignment.

0:23:04 Thomas: Yeah. For what?

0:23:06 Matt: There's some unrest after Hurricane Hugo. There was actually some debate about whether he was even asked to do that. But the most recent amendment to the Insurrection Act actually specifically states that Guam and the Virgin Islands are states for the purpose of the Insurrection.

0:23:18 Thomas: Great. States when we need them to be, but not when we want them to have any representation.

0:23:21 Matt: That's right, that's right. You want to send the military in, of course. The Insurrection Act has only been invoked 30 times in U.S. history, and almost all of those have been either during reconstruction or unfortunately during some kind of race or labor riots and it's kind of got a mixed history I wanted to talk about when it actually kicks in and how um one we've mostly been talking about is when the state actually asks for it so there's an insurrection in any state against its government the president may upon the request of its legislature or of its governor if the legislature can't be convened so if a real emergency situation then call into federal service of the militia of the United States and the number requested by that state and use of such armed forces that he considers necessary to suppress the insurrection. So this is the most common. It can be traced all the way back to 1792. makes sense, but it has to be at the request of the state. There's just no question about that. That's 10 U.S.C. 251. Now in 10 U.S.C. 252, this is one of two that the president can actually do by himself, but it's going to take a pretty extreme situation. The president considers that unlawful obstructions, combinations, or assemblages or rebellion against the authority of the United States makes it impracticable to enforce the laws of the united states in any state by the ordinary course of judicial proceedings, they may call in federal service of the militia and use of armed forces, etc. this is only supposed to be available when there is a rebellion againstthe federal government in a state that is beyond the ability of local law enforcement and courts to handle. It's been suggested in case law that it it should really be when the state itself is involved, maybe, in the rebellion. Is what Trump was trying to rely on when he wanted to send in the National Guard in 2020. It's just way beyond. There's just no way that that's what it's supposed to be for. Then 10 U.S.C. 253 is when you have interference with state and federal law. Is if there is in a state any insurrection, domestic violence, unlawful combination, or conspiracy, if it hinders the execution of the laws in way that deprives people of a right, privilege, immunity, or protection named to the Constitution, or opposes or obstructs the execution of the laws of the United States, or impedes the course of justice under those laws. This, you might remember, is the basis for when Presidents Eisenhower and Kennedy sent in federal troops to enforce desegregation, because it got to the point in Little Rock, Arkansas, where Governor Faubus was actually sending National Guard in to stop desegregation, even though the supreme court had ordered it and basically said this is anarchy we can't have the states doing this and he

0:25:36 Matt: Sent in troops to enforce it in '57. Kennedy did similar things in '62 and '63. So that's a good use of the Insurrection act that's one of the few that's like you can look at it and say that makes sense that's good thing right

0:25:47 Thomas: They weren't following the law. They were taking away people's constitutional rights. Good to me. That's of the good uses of it.

0:25:54 Matt: Exactly what section 253 is for is when they're interfering, especially with the 14th Amendment. This was used a lot during Reconstruction, as you can imagine. Many states were doing that. And all of this requires that the president put on a proclamation first. And this goes all the way back to Washington, where he issued a proclamation saying, hey, cut it out. Like, enough of that. And you actually have to tell them first to disperse. So it. Those are the ways the Insurrection Act is supposed to be used. And Ken Cuccinelli, who is the, we've talked about a few times, but former head of USCIS and the author of the immigration chapter in Project 2025, has written an extensive explanation about why he thinks that the Insurrection Act should cover the border. And I read it, and it doesn't make a lot of sense to me. Basically just saying because it's an invasion, because the situation is out of control, because it meets the definition of of an unlawful obstruction, combination, or assemblage, or rebellion against the authority of the United States. But just people crossing the border. Like,

0:26:48 Thomas: What I don't get, on their terms, if they think this is an invasion, why aren't we doing this? Why isn't it just like a normal, like, Mexico were invading us, like declaring war, we need the Insurrection Act? Or wouldn't we just go defend ourselves somehow? Do we need an extra thing?

0:27:05 Matt: Then that would be an incursion. And could kick in the Alien Enemies Act, which we talked about before. You could treat anybody in that region as an alien enemy. Pretty extreme. But you could actually declare war in Mexico if necessary, if Congress wanted to do that. We haven't actually declared war in a while.

0:27:18 Thomas: That the key? Is that you'd need a declared war or some sort of authorization?

0:27:21 Matt: Right.

0:27:22 Thomas: I'm talking just old time. We're playing a game of Risk and Mexico is like, I'm going to start rolling dice and attacking you. Under their logic, that's what they're trying to make it be, right?

0:27:31 Matt: And kind of concerning thing is when he issued that order calling the cartels a terrorist group, that technically could bring them under the aegis of the authorization for use of military force that got us into Iraq and Afghanistan. Afghanistan.

0:27:44 Thomas: Did we still not get rid of that, Matt?

0:27:45 Matt: That's still in effect. And just, yeah, what is it, like 20 words or something. And it's extremely powerful. It just says basically when the president feels like we have to stop terror, that's how we can do it.

0:27:55 Thomas: That was a bad idea. I'm gonna put that in the category of things we shouldn't have done.

0:27:58 Matt: Yeah, and and shouldn't still be on the books. But That was passed on September 18th, 2001, when everybody was very cool and rational about how we were passing laws. Uh, the AUMF was supposed to apply to anybody responsible for 9/11, but it's been expanded to the point that, uh, used it to justify hostilities against Iran, against taking out that military leader, which has nothing to do with anything.

0:28:05 Thomas: One in effect I

0:28:20 Matt: Um, the Biden administration supported repealing it, but but it's never been repealed. And it's one of those things we really should have gotten rid of before Trump took over.

0:28:19 Thomas: Got them yeah yeah 2021 and 22 maybe but I don'T know if maybe mansion is a big fan of it or Something for whatever reason couldn't get it done oh I guess it would have have needed the filibuster huh yeah could be why

0:28:37 Matt: I guess it would have. Was also in 2020, a very good effort on behalf of progressive Democrats to try to completely overhaul the Insurrection Act, which would have been a really good idea to make sure that only Congress can use it and the president's authorities are extremely limited. That's really how it should be. But, you know, we're not there. I've So, been thinking about this in the context of the border because it seems like Stephen Miller was very clear, and this is back in like November 2023, Stephen Miller was telling the New York Times that he thought we could use the Insurrection Act. And I just kept thinking, why? Like, what is the need for this?

0:29:06 Thomas: Well that's my question what is what are they planning to do like when we talk about this so I okay so a question answered in terms of you can't just do old -fashioned war stuff because don't want to have a declaration of war I mean you could argue that the you know if you're calling them terrorists then you could say maybe that AUMF covers it. But OK, so that's not it. But then what is it if there's in their eyes, what would this do if they're able to successfully use this? What do they then do?

0:29:32 Matt: Even though Cuccinelli and others have argued that the Posse Comitatus Act hasn't actually been too narrowly applied. They've tried to say that it actually could be, the military can be used for more domestic law enforcement than we think. Prevailing view is that the military cannot be used for any kind of frontline law enforcement domestically at all. And this is in part because back in 1998, it was actually the first time since Kent State that a U .S. military service member killed a U。S. Citizen. This is really tragic. It was an 18-year-old kid named Esequiel Hernandez who was just out herding his family's goats. And for whatever reason, there was a team of Marines They were doing drug operations, and we would authorize at that point some supporting operations from active military personnel. And they got it in their head that this kid was some kind of threat, and they tracked him down for 20 minutes and shot him. It was a terrible thing. Esequiel Hernandez is one of those names that people should know and should remember. I'm going to post a little more information about him. It's just really a perfect example of why why the frontline military should not be doing domestic law enforcement. This is what Trump wants to bring back.

0:30:33 Thomas: Matt, surely the people responsible for that were brought to justice, though, right?

0:30:37 Matt: Never happened. Was ever held accountable for that, even though it was pretty much a straight -up murder, as far as anybody can tell.

0:30:42 Thomas: But isn't it worse that they only that, nobody can be held accountable for anything like that? Or am I misremembering the precedent?

0:30:48 Matt: It supercharged right, so that time though there's been a real disfavoring of u .s military doing border operations or supporting border operations for good reason but trump wants to bring that back and in these executive orders he said he basically wants a standing military force on the border like a permanent operation to just be there and this have all kinds of problems obviously I don't think I really need to step through what they could be about why why it's U .S. military doing this kind of thing and being active in that kind of way. And my concern is that once Trump gets used to it, and once he's decided that this is the kind of assemblage that is okay for him to call in military to stop, there's a real precedent there, once he has kind of broken the seal on the Insurrection Act, that it won't be too long before he decides that protests in American cities are something that are worth putting down, that are worth bringing in military troops to do. And you get the same kind of things that happened in LA, but on an ongoing basis. And it sort of seemed like things were going that way in the end of Trump's term in 2020, going into 2021. remember, I should have mentioned that Bill Barr was actually the attorney general at the time that they sent in troops under H .W. Bush in 1992.

0:31:53 Matt: Bill Barr Was supporting the idea of declaring Antifa some some kind of terrorist organization. This got really overshadowed by January 6th. But right around that time, they were saying that they were going to consider Antifa, which is not an organization, to be some kind OF terrorist organization, anybody associated with them could be treated that way. Of leading up to the point that they could decide that could qualify as an interaction if you have people out in the streets protesting. And I've been kind of going back and forth about this, because there's so many different things that Trump is doing right now, it seems like he's inviting people to come out to protest, from mass enforcement actions to what he's doing to federal workers right now to what he's about to do to the economy. Think that they're itching to use the Act. That's my concern about all of this.

0:32:34 Thomas: I feel like once reaction he provokes out of us, then he supports, you know, provokes that counter reaction. I go back and forth because on one hand, it's like, what would it look like, though, if Trump were just Trump trying to do Trump things would kind of look the same. So I don't know if there's some deeper plan behind it, and I also don't know what we're supposed to do if it is some deeper plan, you know? It still feels like we need to resist terrible things, and we can't just comply, so I don't know. Yeah. Sort of feels like - No, yeah, it just sort of feels, like, it's interesting to think about, but ultimately I don't know what to do with that contention either way, you know?

0:32:59 Matt: Protest. Not Right. Well, that's what I've been thinking, is I do get the sense from the way they're talking about it that they are looking for an excuse. Use. And I think that invoking it on the border could be a good start. Interesting just as a point of history that Stuart Rhodes and the Oath Keepers were expecting Trump to invoke the Insurrection Act on January 6th. Wanted Trump to say that the election was so fatally flawed that there'd been an insurrection somehow and that some kind of emergency military order would enforce the election in his favor. Fact that people believed that and acted on it is It's pretty scary. Insurrection But, Act is really supposed to be for extreme things. And unfortunately, it has been used for a lot of labor protests historically, for large armed labor protests, like the Battle of Blair Mountain.

0:33:46 Thomas: Insurrecting against capitalism.

0:33:47 Matt: Yeah, no, literally. Like the Great Railroad Strike, right, went up and down the East Coast where they were going to shut down the railroads, and they brought in the military immediately. But the Battle of Blair Mountain, which people don't really know about, it's actually the only time that bombers have been deployed. The Air Force came out to bomb U.S. citizens. Was in 1921, so they weren't very good bombers. But still,

0:34:06 Thomas: Didn't they bomb Tulsa? Feel like there's bombing involved in Tulsa. That

0:34:09 Matt: I don't know if that's ever been confirmed. It looks like maybe people have said that airplanes were used.

0:34:13 Thomas: Gotcha. At Okay. Any rate, so what happened in this battle of Blair Mountain, you said?

0:34:17 Matt: Yeah, that was a labor strike from miners. And they had to come in and stop that. It was also used for any different number of race riots and racial uprisings, including the ones after MLK and RFK were shot. And on the same kind of scale as Rodney King, which again, nothing close to what happened in 2020. There's just no comparison. And the way they talk about it even now, they talk as if cities were burning down and people were being killed left and right, and that just didn't happen. No comparison to modern times. There's no need to deploy this whatsoever. Want to note that the insurrection act we're talking about, which is this series of statutes under 10 U.S.C., is actually different from the insurrection act that Jack Smith did not charge Trump with. We talked about that last month.

0:35:00 Thomas: I was thinking about that

0:35:01 Matt: It's just very confusing.

0:35:03 Thomas: It's the same name yeah

0:35:04 Matt: Is also called the Insurrection Act, informally. That is just a crime for assisting, engaging in rebellion or insurrection, giving aid and comfort thereto. And as we talked about at the time, there wasn't enough proof that Trump actually fomented insurrection. So that's a little different. That's on the other side of the insurrection equation. Um

0:35:20 Thomas: So I still, I don't know if I got an answer to my question or if I missed it what do you think they're planning to do with this are they planning to just like like don't literally shoot people trying to cross the border like if they if they do this let's because you seems like there's a reasonable chance they do do this if they view this what happens at the the border they put a bunch of troops down there they have a bunch of guns they just shoot anyone who's trying to cross I

0:35:41 Matt: That's part of the plan, uh, and remember in this order it's basically saying tell me why in 90 days I shouldn't do this so I think we assume that we should assume they're going to uh you been wanting to militarize the border for a very long time um was reported in a great book by a couple of new york times reporters about trump's immigration policies where he was talking about private meetings about doing things like that a 12 year old would think of like putting literally a moat with alligators in it at the southern border uh electrified fence. Yeah.

0:36:03 Thomas: Mean he did want to nuke a hurricane so yeah

0:36:06 Matt: Right exactly it's along those lines um an electrifying fence about the idea of you know shooting people to maim them you know he had all these violent fantasies about the border and about things that would be deterrence and you they saw child separation as a deterrent I don't think it ever really was but that was the one of the most extreme things they could have done to actually remove children from their families. But he was thinking about all these different violent ways that we can actually keep people from crossing. And I wouldn't be surprised at all if that's part of it, if they want to make sure that state violence can be used in that way. Would be a pretty extreme use of the Insurrection Act. It could be pretty far beyond the text. I'm also not sure that any court can necessarily stop it. It's an executive power.

0:36:45 Matt: There's an old case back called Martin v. Mott, which was actually during the War of 1812. So it's a little different because it was actually during an actual war. But it does say that the executive has very broad authority to declare this. I think it is possible that a court could try to stop him.

0:36:59 Thomas: I I think the Supreme Court, I think we're in for a whole lot of non-justiciability if you ask me, it sounds like. Out.

0:37:04 Matt: No, I'm sure. I And think there's, there's no question there. They're going to say it's an executive action. It's something he's allowed to do that. You know, if he's, he makes some noise about defending from invasion and at the same time, when you've got a militarized border, I think It's much easier to talk about invasion and to use that kind of language, which is already cropping up pretty regularly in -wing Republican circles.

0:37:20 Thomas: Right so here's my question why go through with the day nonsense does that help him somehow is it a way to like know what I mean like if he can do this, which it sounds like we're pretty worried he can, why didn't he just do it immediately?

0:37:34 Matt: Wants a report. So he's asking for a joint report from DHS. So then you get some cover, right?

0:37:36 Thomas: But he doesn't actually care about facts. Is there a reason this, I don't think Trump really, oh, I just want to do my due diligence. I don't think that's what Trump wanted. Am I assuming that that's just a thing they're saying for some reason? Give them more cover? Like it helps them defend the decision in court or or something.

0:37:55 Matt: Builds a record. And if it does go to court, at least you've got something to stand on, some reason that you're doing it.

0:38:00 Thomas: Interesting. There's no, uh, nothing, nothing we know in particular why they did that.

0:38:04 Matt: But it's also pretty standard stuff you're thinking about doing something like this to ask for a report One of the messages I want to convey here is that immigration is the tip of the spear. It's always going to be the tip of the spear for what Trump wants to do. You know, and we've already talked before, certainly plenty, about the way that CBP was being used in domestic protests, uh, even during the Rodney King riots. CBP was allowed to run rampant through L.A., and they actually pulled people out of their houses and started deporting people in the middle of this sort of martial law situation, because federal border patrol was being invoked along with everything else. Um, CBP is a force that really considers itself to only be accountable to the president, and ICE too. And if you normalize the idea of things like, as they were going to do before the 2020 election, of sending strike teams, so they were going to send like an actual full-on CBP SWAT team, like the equivalent of a SWAT team, to enforce the law ahead of any kind of unrest or violence, you know, if it connected to the election. If they want to keep building cases that cities are not cooperating with ICE, having sanctuary policies, and there's some really concerning stuff that I'm hearing right now about the way that this memo that we've talked about is going to be enforced. With ICE making impossible demands, especially in Massachusetts, we're hearing about them asking for things like a list of all of the undocumented people you've ever arrested, as if that could have possibly

0:39:17 Thomas: What?

0:39:17 Matt: Produced. Yeah.

0:39:19 Thomas: I don't even think they could tell you all the people they've arrested.

0:39:21 Matt: I mean, it's just a ridiculous request. You know, openly lying about, I, maybe we've even talked about this, but openly lying about the way that the courts and police are working in Massachusetts. And that's just my local backyard. That's what I know about what's going on in one blue state. I think they're trying to build a case that these states are going to be in rebellion or are not cooperating with the federal government enough. And And I think it's not going to be long before they're going to prosecute a Blue City DA, maybe it's a police chief, someone else they think is in the way. I think that's going to put a damper on sanctuary policies. And I think that is all kind of part of the unfolding plan here. I'm not saying that there's necessarily one overarching long -term plan, but I think that you put this combination of getting people used to the idea of an extremely militarized police force and then getting used to the idea of an extremely militarized immigration police force. And then the idea that the federal government has this ultimate authority to interfere with state prosecutions and with state law enforcement. Then normalizing the idea that states and cities are in rebellion or not

0:40:16 Matt: Cooperating with the federal government. It all goes bad places. I'm not trying to scare anybody here. I am just trying to raise a mild alarm because I haven't seen anybody really talking about what it means that you have the President of the United States openly talking about using the Insurrection Act when there is, in fact, no insurrection. Insurrection. There's nothing that's happening that even close to resembles anything that the insurrection act has ever been used for before and that's why I want to talk about it today because I think it's just something to keep track of it's something to watch And it does require the participation of the U.S. military, which is an extremely diverse, um, for the most part well-trained, well-organized body. Um, I just think that people should be aware that this is something that the president wants to do. Yeah.

0:40:51 Thomas: Right, well, what should we look at happening next? I mean, what should, should we keep an eye on? That 90 days, I guess we got a while for that.

0:40:58 Matt: A couple more months, but we'll watch for that report.

0:41:00 Thomas: I still don't understand it, because it's, it's not, I mean you say it's standard, but Trump isn't standard. I mean, they didn't, they just went in and ripped out a bunch of the government with no, so I just, something about that seems weird to me. And I, I don't know, I I'm going to keep an eye on what that possibly could mean, but,

0:41:13 Matt: Well, I think it's in conjunction, when I read it again, I think it is in conjunction with the overall plan to have a standing force at the border. Because what he is asking for is how we can take complete operational control of the southern border, which is a myth. This has always been a myth they have put forward, that we can somehow completely lock down this massive border. He is invoking the Insurrection Act in that context. So I think what he's saying is, give me an operational plan for how we are going to have a standing presence at the boarder, but also tell me why I shouldn't use this this extra tool right

0:41:39 Thomas: So it's just giving an opportunity to use a different tool maybe.

0:41:43 Matt: To include it as part of the plan, and it's just the way it's tacked on is very concerning to me. And, yeah, the Insurrection Act is just a tool. It's not necessarily good or bad. It has its purposes, as we've seen, and has unfortunately been used to enforce racial violence, but it's also been used to stop it. So I want to make sure, I don't want to, I'm not trying to be humorous here. I just want to be clear about that.

0:41:58 Thomas: I have you seen the quality of Doom lately? Sorry.

0:42:06 Matt: Is just something I've been thinking about ever since I saw Stephen Miller talk about it years ago. More than anything, I just Want people to be informed on this one and to be looking out for how it might be used. And also, I Think this is one of those situations where as a show, we can tell you what the law is and how it's supposed to work. So when you start to hear trump talking about how he has the right to just override governors or to just send the troops into wherever he wants to you know I want people to know that's not right um You might remember Tom Cotton wrote an editorial in the New York Times, which the New York Times almost completely retracted. They had to publish like a five paragraph italicized explanation of why it was wrong because they got so much criticism about it. But, you know, Cotton was trying to say that Trump should have that kind of authority. He just doesn't. And I just want everybody to know that, and I want people to know it now. Yeah.

0:42:45 Thomas: The important part is we got diverse opinions in the New York Times. So we served that imaginary goal that doesn't do anything in the abstract.

0:42:52 Matt: Some people say that, uh, you know, unrestricted martial law is good. So, all

0:42:56 Thomas: Right. Well, thanks so much for the deep dive. Thanks, everyone, for listening. And know what to keep an eye on. And I'll we'll see on Wednesday for some T3BE and whatever else. And we will definitely see you for Rapid Response Friday.

0:43:07 Matt: Right. See you soon.

0:43:09 Thomas: Teams!

0:43:10 Matt: Whatever they may be.

0:43:11 Thomas: Hope they won. Oh,

0:43:13 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.