Trump Blurts Out Real Reason for Insurrection Act Threat—and It’s Dark

But it emphatically does not mean Trump can evade the courts. Anything Trump orders the military to do will also be subject to legal limits. As Georgetown law professor Stephen Vladeck emails me: “The same laws and the specter of judicial review that what civilian law enforcement agencies can do will also constrain anything the military can do.”

Indeed, it’s likely that the second Trump invoked the act, he’d be hit by lawsuits from, say, the state of Minnesota, presuming he deploys the military there, and from civil society groups representing victims of the crackdown. This would be intensely litigated, with lower courts scrutinizing the invocation’s rationale, fact sets related to the deployment, military conduct on the ground, and so on.

It’s possible that Trump is referring to an 1827 Supreme Court decision suggesting that presidential invocations of the act are not subject to judicial review. But much court precedent and law since then casts doubt on whether that ruling is good law, says Joseph Nunn of the Brennan Center, and even if the administration claims it applies, the courts would hear litigation over that.