This week’s episode of the Parsing Immigration Policy podcast delves into the Insurrection Act, its historical uses, and whether it could legally authorize the use of the military to assist in the arrest and removal of illegal aliens.

The Insurrection Act allows presidents to deploy federal troops not only in cases of insurrection but also when federal law can’t practicably be enforced through conventional means. The Posse Comitatus Act, which many point to as preventing such a use of troops, is not the obstacle many assume it is.

President Trump so far has only tasked troops with protection of federal facilities and agents, but, if he chooses to exercise it, he does have authority under the Insurrection Act to put them to work actually enforcing immigration law.

“The Insurrection Act has been invoked by leaders of both parties to protect civil rights and to enforce federal law. President Trump would have ample justification to use the Insurrection Act to allow the U.S. military to assist with large-scale deportation efforts,” said podcast guest George Fishman, Senior Legal Fellow at the Center for Immigration Studies and former Deputy General Counsel at DHS.

Historical precedent:

Over the past more than 200 years, presidents have relied on the Insurrection Act to deal with some 30 crises.

Presidents of both parties have relied on the Insurrection Act: Grant to suppress the early KKK, Cleveland to protect Chinese immigrants, Eisenhower, Kennedy, and Johnson to enforce civil rights for African Americans, Bush to restore order during the 1992 LA riots.

Misconceptions about the Posse Comitatus Act (PCA):

The PCA does not apply where Congress has explicitly authorized military use — such as under the Insurrection Act.

Immigration enforcement today:

• More than 15 million illegal aliens are in the U.S.
• 3.6 million backlog in immigration court.
• 1.4 million aliens have final removal orders, yet remain at large. 
• Millions of removable aliens were released by the Biden administration, and ICE has no knowledge of their location.
• ICE has only 6,000 officers to manage enforcement nationwide.

Host

Mark Krikorian is the Executive Director of the Center for Immigration Studies

Guest

George Fishman is the Senior Legal Fellow at the Center for Immigration Studies

Related

Don’t Fear the Insurrection Act

President Trump Doesn’t Need to Invoke the Insurrection Act — He Already Has

Intro Montage

Voices in the opening montage:

• Sen. Barack Obama at a 2005 press conference.
• Sen. John McCain in a 2010 election ad.
• President Lyndon Johnson, upon signing the 1965 Immigration Act.
• Booker T. Washington, reading in 1908 from his 1895 Atlanta Exposition speech.
• Laraine Newman as a "Conehead" on SNL in 1977.
• Hillary Clinton in a 2003 radio interview.
• Cesar Chavez in a 1974 interview.
• House Speaker Nancy Pelosi speaking to reporters in 2019.
• Prof. George Borjas in a 2016 C-SPAN appearance.
• Sen. Jeff Sessions in 2008 comments on the Senate floor.
• Candidate Trump in 2015 campaign speech.
• Charlton Heston in "Planet of the Apes".