Trump may have gotten Insurrection Act idea from Brett Kavanaugh

President Donald Trump has entertained the idea of invoking the Insurrection Act as a means of cracking down on protesters in Minneapolis, Minnesota. He may have initially gotten the idea from one of his own appointed Supreme Court justices.

That's according to a Thursday article by the New York Times' Adam Liptak, who reported that Trump's recent flirtation with the 1792 law allowing presidents to deploy the military on U.S. soil may have come from the Supreme Court striking down his attempt to deploy federal troops in Chicago, Illinois. Liptak noted that a concurring opinion from Justice Brett Kavanaugh – who Trump nominated to the Court in 2018 — effectively characterized that loss as a "speed bump on the road to greater presidential power."

"[Kavanaugh] pointed to the possibility of Mr. Trump invoking a different law, the Insurrection Act, to send more conventional military troops to American cities, Liptak wrote.

The Times writer explained that when the Trump administration defended its federalization of National Guard troops in cities like Chicago, Portland, Oregon and Los Angeles, California, it primarily did so under an "obscure" early 20th century statute allowing for the use of troops if the federal government is unable to execute laws using "regular forces." The statute also allowed for deploying troops on American soil in the event of foreign invasion and in order to quell a rebellion.

While Kavanaugh was one of the five justices joined the majority opinion declining to let Trump deploy troops to U.S. cities, he notably didn't sign the actual opinion. He additionally observed: "As I read it, the Court’s opinion does not address the president’s authority under the Insurrection Act."

"The court’s opinion does not address or purport to disturb the president’s long-asserted Article II authority to use the U.S. military (as distinct from the National Guard) to protect federal personnel and property and thereby ensure the execution of federal law," Kavanaugh's concurring opinion read.

According to the Brennan Center for Justice, the Insurrection Act is "dangerously overbroad and ripe for abuse," and has not been updated in more than 150 years. It is effectively the lone exception to the Posse Comitatus Act, which prohibits the U.S. military from being used for domestic law enforcement purposes. However, in the event of a significant uprising against the government, a president can invoke the Insurrection Act to suspend the Posse Comitatus Act and suppress a rebellion using the military. The last time the Insurrection Act was invoked was in 1992, when Los Angeles was consumed by riots in the wake of a jury's acquittal of four police officers who beat Rodney King.

Click here to read Liptak's full report in the New York Times (subscription required).