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President Donald Trump threatened on social media Thursday to invoke the Insurrection Act to stop resistance to ICE activity in Minnesota. 

Trump wrote on Truth Social, "If the corrupt politicians of Minnesota don't obey the law and stop the professional agitators and insurrectionists from attacking the Patriots of I.C.E., who are only trying to do their job, I will institute the INSURRECTION ACT, which many presidents have done before me, and quickly put an end to the travesty that is taking place in that once great State."

United States presidents have used the act about 30 times in the past, 

. The most recent was in 1992. That year, President George H.W. Bush invoked the law to quell riots in Los Angeles after four police officers were acquitted in the beating of Rodney King. 

 about using the law to support immigration enforcement. 

For perspective on the law, MPR News host Nina Moini talked with University of Minnesota law professor Ilan Wurman, who specializes in Constitutional law and presidential power. 

Latest updates on ICE in Minnesota

This conversation has been edited for length and clarity. Use the audio player above to listen to the full conversation. 

The Insurrection Act is actually somewhat unfortunately named, because [it] doesn't just involve insurrection. The act originated in 1792 and I think it was amended in 1794, in 1795, and again in 1807. It was just called the Militia Act. It basically specified the conditions under which the president may call forth the militia to do various things. 

The Constitution says the president can call forth the militia, which today is the National Guard, for a few purposes, such as suppressing insurrection or rebellion, protecting against invasion, and executing the laws of the Union. The [law] says “whenever the president considers that unlawful obstructions, combinations, or assemblages, or rebellion assemblages or rebellion” against the United States makes it impracticable to enforce the laws, then, in certain circumstances — the president has to believe that judicial proceedings are insufficient and so on — in those circumstances, the president may call forth the militia to help execute the national law.

Can President Trump legally invoke the Insurrection Act to send National Guard troops to Minnesota?

It will inherently be a fact-intensive question. But the president will get deference, ultimately, from the courts on this question. (A court giving deference means giving more weight to a decision or perspective.)

I would be surprised if the courts did not give deference to the president if he [determined] that the ordinary course of judicial proceedings are insufficient here, because, according to their view and their perspective, the lives of federal officers are on the line. They’re going to argue, ‘we can't just run to a court to get an injunction.‘ So I wouldn't be surprised if they argued that the ordinary course of judicial proceedings are insufficient to handle what they believed to be, whether rightly or wrongly, unlawful obstructions, combinations or assemblages that are impeding with the enforcement of the law. 

I think there is a solid chance that Trump would be on solid legal footing here. But even if you think it's wrong, the courts are going to give him some deference. It is a range in which he's allowed to make errors in judgment, as long as he can make a plausible case that this is happening. So I think it probably will be lawful for him to invoke this act.

What would the use of the Insurrection Act mean for people in Minnesota?

This act, the Militia Act, or the so-called Insurrection Act, would allow federalized militia, federalized National Guardsmen, to actually enforce the laws directly against the civilian population, which is a rare occurrence, but has happened. You think of Eisenhower calling in the troops to enforce the court's desegregation decisions.

There is a narrower option that the president probably could invoke — though I don't know if his lawyers are thinking about this — [In a case from the 1890s called in Ray Niagara,] the Supreme Court basically held that the president has an inherent power to use any law enforcement or military, as long as it doesn't violate the statutes that exist, to protect personnel. So this is called the protective power. So if the president invokes this inherent protective power, he could presumably deploy the National Guard or military forces to protect ICE agents, to protect federal law enforcement, but they would not be allowed to enforce the laws directly against civilian populations. 

Would it be different from Governor Tim Walz calling in the National Guard?

There are confusing statutes that seem somewhat inconsistent with each other. In the Supreme Court case, I think Trump v. Illinois, that was recently decided, [President Trump] had tried to invoke a different statute involving the federalization of the National Guard. That statute was written, I believe, in the 1990s and provides the conditions under which the federal government can federalize the militia for certain purposes. You really need the governor to ask for it, and the conditions are a bit more narrow. 

And so there's a question, well, wait a minute, how does that statute interact with the militia act? Because the Militia Act doesn't require the state governor to request [the National Guard], doesn’t require commands to go through the state governor. But the point is if you use the Insurrection Act, this older statute, you really don't need to call on the governor to do these things. The president could just do it directly.

What, if anything, could state or local leaders do in the courts to stop the use of the National Guard under the Insurrection Act?

That is a very deep question over which there is much disagreement. Historically, the role of the courts was pretty narrow. You really couldn't bring a lawsuit just because you thought the government was doing something unlawful. You would have to wait until there was a private injury or some imminent injury. 

Today, we do things a little bit differently. There are these cases that allow people to sue the federal government if they believe the federal government is acting unlawfully. They don't have to wait for an injury. But even then, it's a bit weird, because these cases say you have to be able to anticipate some sort of imminent injury. Unless a particular person knows that I'm going to be in this place and create this risk that I'm going to be attacked unlawfully by the National Guard such that I could bring this anticipatory lawsuit, it doesn't really fit the situation, right? 

It is quite difficult for the courts to intervene unless there's a private injury and a private cause of action, and you really have to wait, and it may not be adjudicated until months and months later or years later, and the remedy would be damages. The short answer is, it's very complicated.

Use the audio player above to listen to the full conversation.

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President Donald Trump threatened on social media Thursday to invoke the Insurrection Act to stop resistance to ICE activity in Minnesota. A University of Minnesota law professor explains what the law is and what its use could mean.

A Minnesota law professor explains the Insurrection Act

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