Two Democratic senators are urging the Biden administration to try to limit President-elect Donald Trump’s ability to deploy military forces inside the United States after he takes office.
The senators specifically asked Biden to clarify the conditions under which the Insurrection Act—an 1807 federal law authorizing the president to use military force domestically—can be invoked. They emphasized that it should be reserved for extreme circumstances where state and local authorities are overwhelmed by an insurrection, rebellion, or civil unrest and request federal assistance.
The letter also called for the enforcement of the Standing Rules for the Use of Force, which requires that any use of military force be reasonable in its intensity, duration, and magnitude.
Finally, Warren and Blumenthal asked the White House to make it clear that future administrations would go to Congress before using the military on U.S. soil.
“We urge you to clarify that the President must consult with Congress to the maximum extent practicable before exercising this authority, as well as transmit to the Federal Register the legal authorities,” the Democrats wrote.
Should the Biden administration issue such a directive, it would not be binding on the incoming Trump administration. Once inaugurated on Jan. 20, Trump could issue his own policy directive overturning the one issued by Biden.
Trump has indicated that he would use the military to help deport illegal immigrants, potentially invoking the Insurrection Act to achieve this goal. The Act has been used sparingly in the nation’s history, most recently in 1992, when President George H.W. Bush called in 4,000 Army and Marines to help restore order during the Los Angeles riots.
In November, Trump responded with “True!!!” to a social media post saying that his second administration is preparing to “declare a national emergency and will use military assets” to carry out a “mass deportation program.” It remains unclear whether he intends to have the military directly enforce immigration laws, allocate military funding for deportations, or pursue other options.
Trump has also indicated he would invoke the Alien Enemies Act of 1798 as part of his immigration strategy, specifically to “target and dismantle” cross-border criminal networks. That Founding-era law specifically allows the president to detain, relocate, or deport people from countries with which the United States is at war, that have invaded the United States, or that have committed “predatory incursions.”
The Alien Enemies Act has been invoked three times, all during major conflicts: the War of 1812, World War I, and World War II. Its most recent use was in 1942 when President Franklin D. Roosevelt ordered the military to relocate Japanese nationals and U.S. citizens of Japanese ancestry from the Pacific coastal regions after the Pearl Harbor attack.
