Constitutional law expert: 'Trump thinks the Insurrection Act' is 'declaring martial law'

Legal commentator Allison Gill spoke with Georgetown University Professor Steve Vladeck on her podcast "The Breakdown" about what it means to invoke the Insurrection Act.

On Friday, President Donald Trump's Justice Department subpoenaed Gov. Tim Walz (D-Minn.) and Minneapolis Mayor Jacob Frey, claiming they were obstructing law enforcement.

Legal experts reacted to the investigations and subpoenas with contempt. One noted that he feared the move was a pretext to the Insurrection Act. The major part of the law mandates cooperation with the state and local government. Trump doesn't have that. CNN reported that Trump's allies aren't all on board with using the act.

We view military enforcement of domestic law as corrosive to civil society," said Vladeck, characterizing it as "a break-glass situation that we should have only for emergencies."

Leaders have been reluctant to go that far in the past. Even Trump, who nearly invoked the Act after the George Floyd murder in Minneapolis.

In the past, state and local leaders had been eager to be helpful, and the law had been used sparingly. Leaders also "tended to have factual predicates where one of two things was true," Vladack listed.

First, there must be agreement and cooperation between state and federal officials.

Second, Trump appears to be confused about what the law actually does.

"I think he also has in his mind this view that the statute lets him do more than it does. Like, I think to him, invoking the Insurrection Act is tantamount to imposing martial law. And it's not right. It's actually just saying you can have the army next to ICE and the FBI doing the same things. That's problematic enough in its own right, but it's I think there's a disconnect between what Trump thinks he's getting and what it would actually do."

Gill agreed that Trump appears to misunderstand what powers the Insurrection Act gives him.

"The president can't deploy the National Guard unless the regular forces fail, which is the military. And since that hadn't happened, you can't deploy," she said.

After Gill read through the full section of the law, Vladeck explained, "the problem is is that if you read that language literally and out of context, you know, a single private citizen who parks their SUV in front of the garage that the ICE officers are driving their vehicles out of is, you know, maybe impeding the ability of federal law enforcement officers. No one would ever have thought that that was sufficient to justify an invocation of the Insurrection Act."

So, he added, it appears the White House has "a bit of a disconnect between what the statute says in a vacuum and how it's always been understood. And it's always been understood to require much, much more to the point of either local authorities who are overwhelmed or local authorities who are themselves the ones who are doing the obstructing."