Over the past few weeks, the Trump administration’s attempt to insert federal military (or Guard) force into major American cities has triggered a cascade of courtroom pushbacks. What looked like a bold posture on law and order is increasingly turning into a legal war of attrition. The administration, frustrated by injunctions and restraining orders, is now contemplating invoking the Insurrection Act to bypass recalcitrant courts. That idea is neither trivial nor purely rhetorical, because pulling that lever would mark a serious turn in American constitutional practice.

Portland, Oregon: “Untethered to facts,” says the court

President Trump ordered federalization of some 200 Oregon National Guard troops — and even tried to bring in troops from California and Texas — ostensibly to protect ICE facilities and control protests. But Judge Karin Immergut (ironically, a Trump appointee) issued a temporary restraining order, blocking the deployment on the grounds that the administration’s descriptions of violence and unrest were disconnected from ground-level reality. In her ruling, she criticized the administration’s narrative as “untethered to the facts” and signaled that the level of protest did not rise to the threshold justifying military force.

The very next day, as news broke that the Trump team was trying to bring in California or Texas Guardsmen as a workaround, Judge Immergut expanded the order, blocking any federalized Guard deployment into Oregon, no matter the state of origin. She saw the maneuver as a direct evasion of her earlier order.

In response, the administration appealed upward to the Ninth Circuit. At oral argument, two Trump-appointed judges in that circuit questioned whether the lower court even had the authority to second-guess the president’s deployment decisions. One (Judge Ryan Nelson) suggested judicial interference on military judgments is fraught; another (Bridget Bade) leaned toward suspending the TRO. Meanwhile, the third judge on the panel, Susan Graber, seemed more skeptical of the administration’s justifications.

In short: Oregon is a live battleground. The administration has been rebuked but hasn’t lost yet.

Chicago, Illinois: “No danger of rebellion,” rules the court

In parallel, Trump ordered 500 Guard troops (from Texas and Illinois) to be federalized and deployed to Chicago, intending to assist with immigration enforcement and protect federal property. But Judge April Perry responded with a two-week temporary block, finding that the administration had not made a credible showing of a rebellion or insurrection in Illinois. Her ruling emphasized that the evidence on the ground did not support the sweeping posture being taken.

The government appealed immediately. A federal appeals court allowed the Guard to remain under federal control but forbade active deployment (no patrols, no use of federal authority in the field) pending further legal argument. In effect: troops can be in their barracks, but not on the streets.

Judge Perry stressed constitutional concerns (Tenth Amendment state sovereignty, 14th Amendment due process) and warned that federalizing the Guard to enforce law in a state with functioning civil institutions was an overreach. She noted that the federal agents had been executing arrests, courts were open, and the civil machinery was not failing.

Thus, Chicago is also stalled. The troops are there in name (federal control) but legally neutered in practice.

Memphis and Other Cities: State Guard vs. Federal Force

Elsewhere (notably Memphis), the National Guard is active but only under the control of the state governor, not as a direct federal deployment. That distinction matters a great deal legally. When a governor consents to or requests federal backup (or allows dual status), the legal hurdles are lower. But federalizing Guard troops against state wishes is exactly the point of friction.

So far, the court setbacks have drawn clear lines: federal courts are reluctant to allow the administration to treat domestic cities as if they were war zones to be occupied. The question now: if those lines keep holding, is invoking the Insurrection Act the logical next move?

Why the Trump Team Might Invoke the Insurrection Act

Given the ongoing legal resistance, it’s hardly surprising that the Trump administration is openly considering the Insurrection Act. It’s a rarely used tool, but that rarity is part of its power. Here’s the administration’s reasoning (and where it fares better than critics often admit):

A tool when lesser methods stall

The administration would argue that ordinary federal deployment under Title 10, federalizing Guard units, or cajoling cooperation from states has now proven insufficient. Courts are blocking those moves, and recalcitrant states or cities refuse to cooperate or even actively resist. In such a scenario, invoking the Insurrection Act is seen as the constitutional “hammer,” the tool Congress itself gave the president to step in when civil authority fails or refuses to enforce federal law.

Precedent and presidential authority

Administrations have invoked or threatened the Insurrection Act in past crises (e.g., during civil rights era desegregation, or in response to riots). Some legal scholars argue that courts must defer to the president’s judgment in such cases, subject only to after-the-fact review. The logic: when Congress delegates authority, the executive has some discretion in determining when conditions justify that use. So even if courts later strike it down, the immediate operational advantage might be invaluable.

If states refuse to act

A key legal justification often invoked is the idea that when state or local governments “cannot or will not” enforce federal law or maintain public order, then federal authority may step in. The Trump team could argue that blue-governed cities with policies hostile to federal immigration enforcement or reluctant to act on violent crime are failing their duty, thus opening the door to Insurrection Act authority. In other words, if states obstruct or decline to support federal operations, the Insurrection Act can be invoked to overcome that obstruction.

Immediacy, deterrence, and signaling

Sometimes the threat is as useful as the action. Announcing a willingness to invoke the Insurrection Act may pressure state actors to back down or cooperate. It signals seriousness. For an administration that feels blocked at every turn, having that tool in reserve offers leverage in negotiations, theoretically forcing states to acquiesce to federal demands rather than face direct military intervention.

Protecting federal functions and assets

Of course, one argument is that federal operations — ICE, immigration enforcement, federal buildings, border installations — should not be rendered toothless by local obstruction. If states refuse to protect or permit access to federal facilities, the presidency may claim a duty to protect those offices and enforce national law. Courts already recognize that the Insurrection Act is a statutory exception to the Posse Comitatus Act (which normally limits military involvement in civilian law enforcement).

From the administration’s vantage, the legal obstacles are mounting fast. If Trump can show a state is failing to enforce the laws while federal property or agents are under threat, invoking the Act is positioned as the last resort short of national collapse.

Why Invoking the Insurrection Act Is Dangerous

Yet for all the strategic appeal, invoking the Insurrection Act is not just another legal option; it is a constitutional rupture. If deployed incorrectly, it could scar the republic.

The high bar of insurrection, rebellion, or failure of civil authority

The Insurrection Act isn’t a catchall to enforce federal mandates in every city that resists. It applies in limited circumstances: insurrection, rebellion, or domestic violence serious enough to make enforcement of law impracticable, especially if civil authorities are unable or unwilling to act. Courts have long held that the president must demonstrate that state authority is overwhelmed or unwilling. In many of these cities (Portland, Chicago), the evidence for insurrection is weak; civil institutions are functioning. Several judicial decisions have already signaled skepticism about broad characterizations of city disorder as insurrection.

If courts conclude the threshold hasn’t been met, invocation becomes an abuse of power, not a recovery of order.

Risk of militarizing the homeland and eroding civil liberties

Deploying military force in our cities against U.S. citizens is fraught with peril. It opens the door to abuses, curtailment of due process, overreach in policing functions, and chilling of legitimate protest. Once military force is embedded in domestic law enforcement, many of the safeguards that protect citizens under civilian policing (warrants, oversight, civil rights) can be undermined. Conservatives should fear erosion of constitutional order more than crime alone.

Legitimacy and popular backlash

Effective governance depends partly on perceived legitimacy. If the administration invokes the Insurrection Act broadly (even in politically unfavorable states or cities), citizens might view it as militarizing politics. That fuels distrust and resistance. It gives political opponents, civil liberties groups, and moderates ammunition to portray the government as overstepping. A movement that rightly rails against “big government” should be very cautious about unleashing military authority in civilian politics.

Judicial blowback, long litigation, and credibility losses

No matter how confident the administration might be, invoking the Insurrection Act will be met with immediate legal challenges. If courts strike it down decisively (or place wide restrictions), it becomes a political and legal defeat drawing national headlines. Worse, it could cripple future federal operations, since precedent may become more rigid against military deployments. The administration might emerge looking reckless and constitutionally tone-deaf, which weakens its hand later.

Dangerous precedent for future misuse

Arguably the strongest concern: once you lower the barrier to using the Insurrection Act, future presidents — of either party — could invoke it for less serious domestic conflicts: civil disobedience, demonstrations, protests against federal policies, gun rights, etc. The norm of civilian rule and limited government could be eroded. Conservatives — especially Christian conservatives — ought to defend institutional limits even more zealously than we defend strong enforcement. Because once the instinct to militarize becomes normalized, retreat is hard.

Alternatives not fully exhausted (or leveraged)

Some critics of the administration would argue that many non-military or more constitutionally safe tools remain underutilized: enhancing ICE and DOJ resources, negotiating with state governments, offering conditional funding or jurisdictional cooperation, leveraging judicial remedies, improving intelligence and undercover operations, or even more robust border enforcement to reduce migration flows. Invoking the Insurrection Act risks making military force the default rather than the last resort.

In short: invoking the Insurrection Act is risky, constitutionally fraught, and potentially damaging to the very principles conservatives claim to protect.

So, Should the Trump Administration Invoke the Insurrection Act?

After weighing the evidence, the institutional stakes, and the constitutional risks, I don’t believe the Trump administration should invoke the Insurrection Act at this point. In fact, in most of these contexts, it should refrain altogether. Here’s how I come to that conclusion (and yes, I grant there might be extreme exceptions, but we’re not there yet).

First, the factual basis is shaky.
Courts have already flagged serious gaps in the administration’s portrayal of unrest. Judge Immergut declared the claims about Portland “untethered to facts.” Judge Perry in Illinois found no credible showing of rebellion. When neither the courts nor credible evidence can support that we’re facing insurrection, invoking the Act would be overreach. We must respect that the judicial function is to test executive claims, not rubber-stamp them.

Second, constitutional order is more important than expedient force.
We cannot sacrifice the delicate balance of separation of powers in the name of short-term effectiveness. A strong executive that ignores limits is precisely what constitutional conservatism fears. The rule of law must be maintained, even when enforcing it is difficult. If we abandon that, we might win skirmishes but lose the republic.

Third, legitimacy and public trust matter.
Conservative governance requires moral and popular legitimacy. Using militarized force in cities will alienate moderates, energize opposition, and raise deep fears. A government that looks like an occupying force invites resistance, civil disobedience, and political backlash. The ends do not justify the means when those means erode the social contract.

Fourth, we can still push hard with constitutionally safe tools.
The administration should continue appeals, press states and mayors for cooperation, escalate prosecutions, strengthen border enforcement, target operations intelligently, and use incentives/penalties for state compliance. These are slower, messier paths, but they respect institutional boundaries. Let courts, legislatures, and governors make choices under pressure, rather than be gaslit by martial threat.

Fifth, the precedent risk is too grave.
Invoking the Insurrection Act loosely risks making military intervention in politics normal. Conservatives must resist setting a precedent that hands future presidents a tool they (or someone unlike them) could misuse. Our commitment to limited government must apply also when our side is in power.

That said, I concede that if a future city actually experienced full-blown insurrection, with armed mobs overrunning police, courts shut down, and state government unable or unwilling to act, then the Insurrection Act would become defensible. But that threshold, in my judgment, is not remotely reached in Portland, Chicago, or any other city today.