The Insurrection Act Door Kavanaugh Left Open

GrantHey, welcome back to Power Check. I'm Grant.

MayaAnd I'm Maya. Grant, read me that line again, the one from Kavanaugh's concurrence.

GrantSo Kavanaugh writes that today's ruling could push a president towards regular active duty forces instead of the National Guard. And here's what he says flat out, "The opinion doesn't touch the Insurrection Act."

MayaWait, so the court ties one hand and just leaves the other door open?

GrantThat's the footnote. That's where the whole argument is living.

MayaOkay, so back up. This is Trump versus Illinois, right? Six-three blocks the Chicago deployment.

GrantAnd Trump's already out saying he's coming back stronger.

MayaWow. Of course he is. All right, so today we've got the actual mechanics, how the majority read regular forces, why Posse Comitatus mattered.

GrantThen we get to the part that kept me circling, the Insurrection Act itself. It's old, it's vague, and Congress has had a fix just sitting there for years.

MayaPlus, courts, who can even sue about this? We've got a Minnesota thread, a stayed DC ruling, the whole mess.

GrantRight. And we close on the real question, is this a check or not? It's not a clean answer.

MayaAll right, Grant. Footnote first, walk me through what the majority actually did. Six words in a footnote, not the use of the regular military, but the National Guard. Kavanaugh wrote that in his concurrence.

GrantWhoa, hold on. Footnote of what?

MayaTrump v. Illinois, December 23rd, six-three vote.

GrantI read footnotes the way I read a service record. That's where the real damage shows up.

MayaThis one's basically a warning light. The court blocked Trump from federalizing the Illinois National Guard under Section 12406.

GrantOver the ICE protests in Chicago, right?

MayaRight. Just Security broke that down back on January 9th. Within days, Trump said he'd pull the Guard out of Chicago, LA, and Portland.

GrantFor now.

MayaFor now. He also promised he'd come back, perhaps in a much different and stronger form.

GrantThat's not a man backing down. That's a man rerouting.

MayaWhich is exactly what Kavanaugh's footnote is circling. He's worried this ruling nudges presidents toward the active duty military instead of the Guard. Mm-hmm.

GrantBecause the regular military doesn't carry the same statutory leash the Guard does.

MayaAnd there's a second line buried in there people keep skipping past. Kavanaugh says flat out, "This opinion says nothing about the president's authority under the Insurrection Act."

GrantNothing at all?

MayaNothing. Untouched.

GrantWow. So the court shuts one door on narrow technical grounds-

MayaAnd leaves a much older, much vaguer one standing wide open

Grant... a door from 1807 nobody's had to actually walk through in living memory.

MayaSo which one does he try next?

GrantWell, building on that footnote, the majority leaned on one specific word in the statute.

MayaOkay, plain English, please. I didn't go to law school.

GrantFair. The word doing all the work is regular forces. Just Security's write-up on the case says the majority read that to mean active duty military-

MayaMm-hmm

Grant... not the Guard.

MayaOkay, so wait. Before a president can call up part-time Guard troops here, he has to prove the actual army can't handle it?

GrantExactly. He has to prove he can't execute the laws with regular forces first. Illinois argued Trump skipped that step, and the majority agreed.

MayaSo he didn't lose because of what's happening on the ground?

GrantNo. Lawfare reported it straight. He lost on process. There's a second layer too, the Posse Comitatus Act.

MayaThe one that keeps soldiers out of police work?

GrantRight. It bars the military from enforcing federal law unless Congress or the Constitution says otherwise. So the government needed a basis for using-

MayaRight

Grant... regular troops, then proof they couldn't do it alone.

MayaAnd they didn't have either, not even close.

GrantThey didn't show it. Nothing about crowd size, nothing about property damage, pure statutory plumbing.

MayaPlumbing. So the majority basically said, "You skipped a pipe fitting."

GrantSure, which is why the opinion barely mentions the actual protests. It didn't need to.

MayaNot everyone signed on to that reading, though.

GrantNo. Reason reported that Alito, joined by Thomas, argued there was no basis for second-guessing the President's-

MayaWow

Grant... own call that local police weren't enough.

MayaSo they'd just defer to him?

GrantBasically, and Gorsuch dissented separately too. Different reasoning, same outcome.

MayaThree flavors of no.

GrantAnd Congress wrote this statute decades ago without spelling any of it out.

MayaWhich means the fix is sitting right there, just sitting there unused.

GrantNobody's touched it.

MayaSo the court closed one door on narrow technical grounds but left the frame propped open-

GrantRight

Maya... for the next attempt.

GrantAnd that's exactly why Kavanaugh's concurrence matters. He didn't just close it. He listed the open questions by name. Something Kavanaugh did here, he didn't just sign on to the majority. He wrote separately.

MayaOkay, so if he agreed with the result, why split off and write separately?

GrantLawfare had it. Kavanaugh backed the outcome on narrower footing. The administration hadn't proven it needed the Guard. Proving it could never need one is a different question entirely.

MayaSo the door's still cracked open?

GrantWide open. Then he lists the questions he's dodging, how the Posse Comitatus Act and the Insurrection Act actually mesh. Whether the president holds some inherent Article II power to protect federal property, nobody's tested.

MayaAnd he just leaves them sitting there?

GrantUnanswered on purpose.

MayaCome on, you don't list the exact statutes your successor might reach for unless you're pointing at the shelf.

GrantOr you're a judge who knows the case didn't require touching those questions, so he didn't.

MayaA Brookings study in July flagged the same gaps, said the legal space around domestic deployment is just sitting there wide open on exactly those points.

GrantWide open, and Congress hasn't touched either statute in decades.

MayaLegal commentary isn't reading Kavanaugh's silence as generously as you do. Jack Goldsmith said this ruling probably doesn't end the push. It just shifted which statute they reach for. Insurrection Act's the cleaner move.

GrantCleaner because it skips the Guard's active duty exhaustion problem entirely.

MayaAnd Lawfare lays it out. Guard provision runs straight into posse comitatus. Insurrection Act was built specifically to tunnel around that wall.

GrantSo the Guard route just got harder. The Insurrection Act route never got touched at all.

MayaWow. Which is either a court being careful about what it won't decide or it's handing the next filing an outline.

GrantI'll take careful. Courts default to the narrowest question in front of them.

MayaAnd I'll take outline. A 200-year-old statute with no modern guardrails has never once stopped anyone from trying.

GrantFair enough.

MayaSo what's actually sitting behind that door? What does the Insurrection Act let a president do that the Guard route couldn't?

GrantBuilding on that gap, and here's where I'd be looking harder, there's a wider door sitting right next to the one the Court just narrowed.

MayaOkay, so the Insurrection Act.

GrantRight. 10 USC 251 through 255. It's the actual exception to Posse Comitatus.

MayaMeaning troops stop standing around buildings and start doing police work?

GrantActions, checkpoints, actual law enforcement. That's the whole function of invoking it.

MayaWait, soldiers acting like cops?

GrantThat's the design. And here's the thing, two of its three provisions don't require a governor's request at all. That's not an oversight.

MayaZero input from the state?

GrantThe trigger is whatever the President considers necessary, obstructions, unlawful combinations, conspiracies blocking federal law. His call, his wording, his interpretation.

MayaConsiders is doing a lot of heavy lifting for one word.

GrantThe Brennan Center has a detailed explainer on the Insurrection Act. I spent an afternoon with this statute. It's over 150 years old, and it never defines insurrection, rebellion, or domestic violence, not once.

MayaSo the dictionary hasn't been touched since what, the 1870s?

GrantCongress just left it sitting there, and that's intentional.

MayaBut when's it actually been invoked? Skip the hypotheticals. Real deployment.

Grant1992, Los Angeles after the Rodney King verdict, and that came at the governor's request.

MayaSo consent was part of the deal that time.

GrantEvery prior use had that kind of buy-in or an emergency nobody disputed.

MayaAnd now?

GrantNPR's January coverage quoted Georgetown and GWU scholars saying using this for immigration enforcement or routine crime would break from every prior use, and I mean every one.

MayaYeah, that's a serious break from every actual use before it.

GrantYou're turning an emergency statute into everyday policing. That's the bait and switch right there.

MayaSo one door just got tighter, and the other one's still wide open.

GrantAnd nobody's had to test its hinges yet.

MayaCongress had literal decades to rewrite this.

GrantAnd nobody's had to test its structural limits yet. Nobody's willing to be first.

MayaOf course there is.

GrantThe fix exists on paper. It just never left committee, like a car with all the parts for a restoration sitting in the garage, except nobody ever builds it.

MayaWhich means the only real check now is whoever's willing to go to court.

GrantBuilding on that gap, and this is where I spent an afternoon, there's an 1827 case underneath it all, Martin v. Mott.

MayaOkay, so the militia guy.

GrantA soldier refused to report when the president called out the militia. Court sided with the president, said that call binds everyone below him. No daylight there.

MayaSo it's not a state suing. It's one guy in the ranks.

GrantTotally different scenario, but that deference language just stuck around anyway.

MayaSo two centuries of courts stay out resting on a mobilization dispute?

GrantWhich is why the Seventh and Ninth Circuits didn't buy Mott wholesale. Both treated how far the statute stretches as a real question, reading the words, not just deferring to the president's call.

MayaTranslate that. Can a state actually walk into court and win?

GrantNarrower window, but real. A court reads the statute's actual terms, and a state argues the president blew past them. That's the posture.

MayaWe saw that play out. January, Minneapolis, Trump threatens troops, and Minnesota's attorney general is out the door with a lawsuit before anything moves.

GrantSame dynamic, different stage. Judge Jia Cobb ruled the D.C. Court... Guard deployment unlawful, and here's where it gets frustrating.

MayaUnlawful full stop?

GrantShe stayed her own order for appeal. Win on paper, troops stay on the ground.

MayaA victory you can't feel.

GrantThat's judicial review here. Narrow, technical, occasionally bites, and glacially slow.

MayaWhich pushes the actual fix somewhere else entirely.

GrantAnd the fix, it's already sitting on paper somewhere, drafted, waiting. So the stayed ruling isn't the last word. Congress has had a fix drafted the whole time.

MayaOkay, so there's an actual bill sitting around?

GrantTwo of them. Congress.gov shows H.R. 4076 and S. 2070, both titled the Insurrection Act of 2025.

Speaker 3And what do they actually do?

GrantRequire the president to consult with Congress first, cap unilateral action past seven days without approval, and write judicial review straight into the statute.

Speaker 3So they patch every hole we've spent this whole episode poking?

GrantPretty much, and neither chamber has scheduled a vote.

Speaker 3Zero movement?

GrantZero. Sitting since introduction.

Speaker 3All right, verdicts. I'll go first. No check. An authority with no defined terms and one warning shot from the bench doesn't add up to real oversight.

GrantI'll take the more generous read. Partial check. The court read the statute honestly, and Illinois won on the record it actually built.

Speaker 3Partial's generous.

GrantMaybe, but Lawfare had this one down plainly. With Congress disinclined to act, it falls to courts to interpret what these provisions even mean.

Speaker 3Which means the next real test is whoever gets deployed next.

GrantWatch whether an invocation ever names a specific act of obstruction with a specific end date.

Speaker 3Hmm.

GrantThat's the kind of detail a court could actually grab onto.

Speaker 3And watch whether either bill gets a hearing before the next deployment fight, because right now, Congress is just letting the phone ring.

GrantIt's ringing. Okay, check or no check? Final verdict for the week.

Speaker 3Partial check. The court drew a real line on Guard deployments.

GrantAnd Kavanaugh flagged the Insurrection Act question in that footnote, then walked right past it.

Speaker 3Left the door open for whoever's next.

GrantRight, but that line only holds if the government can't use regular forces first.

Speaker 3Mm-hmm.

GrantCongress never closed the other door.

Speaker 3The Insurrection Act door. No check there. Nothing in this ruling touches it.

GrantTwo bills are just sitting in committee, H.R. 4076 and S. 2070. Both would force consultation and a seven-day window before troops move. Neither's had a vote.

Speaker 3So the fix exists. Congress just won't pick it up.

GrantCourts are doing the legislators' job right now.

Speaker 3If this helped you follow the troops and courts fight, send it to someone who'd get it.

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Speaker 3Thanks for hanging with us this week.

GrantSee you next time.