“…a force multiplier for 🧊”

Again I have to beg your indulgence. This is from an interview by Isaac Chotiner of El izabeth Goitein, the senior director of the Brennan Center for Justice’s Liberty & National Security Program, and an expert on Presidential emergency powers. The interview is published in The New Yorker . I have the app in my phone, which prevents me from accessing it in a browser. So if you doubt my quotations, you’ll have to look it up (Google is a better friend than I am.)

I recently read a piece by Jack Goldsmith basically saying that the Insurrection Act more or less gives the President power to do what he wants—incredibly broad power. Is that your analysis, too?

Well, it gives the President remarkable power. I don’t think it gives the President the power to do anything he wants. There are criteria in the Insurrection Act for deployment. Those criteria are on their face broad, and the law gives the President significant discretion. However, the Department of Justice has long taken the position that the law is limited by the Constitution and tradition, and so the department has interpreted the Insurrection Act to apply in a much narrower set of circumstances than the actual text of the law would suggest. I think that’s an important gloss.

Does it matter what the Department of Justice said in the past, given how we’ve seen the D.O.J. act in 2026?

Well, the Department of Justice tends to argue that it matters what it has said in the past. Now, of course, this Department of Justice might not make that argument, but certainly anyone challenging the invocation of the Insurrection Act will. And they won’t just be saying that the Court should defer to the Department of Justice’s past interpretations. They will be pointing out that those interpretations are in fact grounded in the Constitution and tradition.

What kind of limits has the department thought were reasonable in the past?

There is a 1964 memorandum that takes the position that the law should be invoked only in three circumstances. First, if a state requests assistance to put down an insurrection against the state government. Second, if invocation of the Insurrection Act is necessary to enforce a federal court order. And third, if state and local law enforcement has completely broken down.

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And to put a finer point on it, at least in the past hundred and thirty years, the Insurrection Act has only been invoked when a governor has requested assistance because state and local law enforcement was completely overwhelmed—an obvious example would be Los Angeles in 1992, when riots killed sixty-three people and caused a billion dollars’ worth of damage—or when states themselves were actively obstructing civil-rights laws and federal court orders implementing civil-rights law.

And to address the Martin v Mott issue (which, not unimportantly, involved a soldier refusing to deploy on the grounds POTUS had no grounds to invoke the Act):

There’s also the fact that since Martin v. Mott, the Supreme Court has issued several decisions that suggest that there is an exception to the rule that was articulated in Martin v. Mott, for situations in which the President is acting in bad faith, where he has exceeded a “permitted range of honest judgment,” where he has acted in a way that involves “manifestly unauthorized exercises of power,” or where he has made an “obvious mistake,” and I’m piecing together quotes from different decisions. So to tease out a general rule from those cases, the President can cross a line where the courts have the authority to step in.

Which supports, or at least gives credence to, to my argument. And this is interesting:

If the President does invoke the Insurrection Act, where would the challenges come from? Who would the plaintiffs be in a case like this? Would the challenge come from citizens or states? How might that work?

I think it would come from states, especially if President Trump federalized the National Guard forces in those states and removed them from the command and control of the governor. But even if not, I think that the states would bring lawsuits and to the extent that the deployment of troops exacerbated the unrest in those states and required a greater deployment, or put a strain on state and local law enforcement in responding to that unrest, that would be a basis for the states to bring a lawsuit. In addition, any person who is injured by the deployment of troops under the Insurrection Act would have standing to bring a lawsuit. And by injured, I don’t mean literally physically injured, but harmed in some way by the deployment. So it could come from individuals. It almost certainly would come from states. (emphasis added)

So not just families suing because their mini-van was tear gassed and their child injured, but (and more likely, given the expense), business could sue. Certainly to argue in court that the violence and lawlessness is coming from the federal government, not against it; and it’s harming their business.

The other point that I want to make is that if the military were being deployed to try to bring ice under control, that would be one thing. That’s not the purpose. The purpose of deploying the military here would be to enable the violence and lawlessness that we’re seeing from ice. And so even if the military itself is not engaging in these kinds of destructive actions, it is there to insure that ice is able to do so. It would serve in that way as a force amplifier for ice.

The context there is the discussion in the interview of the recent Supreme Court ruling that held that Trump could not deploy the National Guard (under a statute other than the Insurrection Act). If the argument in court is that the Marines would just be a force amplifier rather than a pacifier.

Which is a very interesting argument indeed….