Donald Trump’s ‘Alice in Wonderland’ views

His interpretation of the Insurrection Act sets the stage for a coup d’état.

President Donald Trump has made a habit of telling anyone who cares to listen how he will exercise his power. A presidency devoted to retribution. Said and done. Acting unilaterally to impose tariffs. Said and done. Appointing loyalists to important government offices, whether they are competent or not. Said and done.

Traveling back from Egypt Tuesday, the president said he could legally invoke the Insurrection Act to deal with the crime problem in Chicago. He wants Illinois Gov. J.B. Pritzker to “beg for help,” but if he doesn’t, Trump would send in the military anyway.

Last week, the president also talked about the Insurrection Act. The act gives him the ability to use the regular military to undertake domestic law enforcement activities if necessary to support civilian law enforcement agencies and put down rebellion.

To do so, he must make a finding that insurrection makes it “impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.”

Can you think of any place in this country where that is the case? Chicago? Portland? Washington, D.C.?

If you listened to Vice President JD Vance in an appearance on Sunday on NBC’s Meet the Press, you might think so. When asked about the president’s consideration of the Insurrection Act, Vance replied, “The president is looking at all his options.”

He added, “The problem here is not the Insurrection Act or whether we actually invoke it or not. The problem is the fact that the entire media in this country, cheered on by a few far-left lunatics, have made it OK to tee off on American law enforcement…. The president just wants people to be kept safe, and we’re exploring everything that we can do to make sure that the American people are safe in their own country.”

Hardly.

The president’s interest in the Insurrection Act has more to do with his desire to expand the power of the presidency beyond its proper constitutional boundaries than with any threats to order or the ability to enforce the law. It sets up the next step in what comedian and commentator Bill Maher calls the administration’s “slow-moving coup.”

You get a sense of that from paying attention to the fact that Trump listed among the things that would lead him to use the act whether “people were being killed and courts were holding us up, or mayors or governors were holding us up.”

Courts “holding us up”? The president is suggesting that the problem, as he sees it, is not that the courts can’t do their job but that they are, in fact, doing a job he does not want them to do.

Stephen Miller, deputy chief of staff, drove that Alice in Wonderland interpretation of the Insurrection Act home when he called a judge’s order barring the use of National Guard troops in Portland “legal insurrection.”

“There is an effort,” Miller said, “to delegitimize the core function of the federal government of enforcing our immigration laws and our sovereignty.”

Legal insurrection. There is no such thing.

The Insurrection Act contemplates an extraordinary deployment of the military only if there is the kind of breakdown in law and order that threatens the republic, not when courts issue orders that displease the president or his cronies. The people who wrote the act certainly did not have that purpose in mind.

The act, the Brennan Center for Justice notes, “is actually an amalgamation of different statutes enacted by Congress between 1792 and 1871. Today, these provisions occupy Sections 251 through 255 in Title 10 of the United States Code” and are referred to as the Insurrection Act of 1807.

It was enacted as a response to the 1794 Whiskey Rebellion and a conspiracy led by Aaron Burr to set up a separate government in the American Southwest.

When it is invoked, the Insurrection Act suspends another law, the Posse Comitatus Act, which forbids the military from taking part in civilian law enforcement. It has been invoked 30 times, most recently in 1992 when President George H.W. Bush used it during riots in Los Angeles.

Before invoking it, the president must first call for the “insurgents” to disperse. If they do not, the president may then order the deployment of troops.

But the president and Miller are not looking to disperse insurrectionists.

They are eager to do an end run around two recent court decisions that found that the administration’s claims about disorder in Chicago and Portland were not credible and could not justify sending in the National Guard.

On Oct. 4, Federal District Judge Karin Immergut said that the president’s claims that Portland was “war ravaged” from “Antifa, and other domestic terrorists” and his authorizing “Full Force, if necessary” must be based on “a colorable assessment of the facts.” Instead, she found them to be “untethered to the facts.”

Six days later, April Perry, another reality-based Federal District judge, found that the administration’s “perception of events … are not reliable.” She saw “reasonable support for a conclusion that

there exists in Illinois a danger of rebellion” or that Trump “is unable … to execute the laws of the United States.”

Those judges would not be taken in by the president’s wild claims. Their insistence on standing up for the rule of law, paying attention to reality, and not bending to his will drive the president to distraction.

It is clear that he has an obsession with places like Chicago and Portland. He says, wrongly, that crime in Chicago is “probably worse than almost any city in the world” and that even Taliban-ruled Afghanistan would “marvel at how much crime we have.” He insists that Portland has been “on fire for years” (it hasn’t) and is overrun by “insurrection, really criminal insurrection” (it’s not).

But whatever the facts, to accomplish his slow-moving coup requires, as Maher explains, the deployment of troops now to “get people used to looking at that. Normalize snatching people off the street. Get them used to looking at that. Normalize seeing the National Guard and the military on the street.”

If and when the president invokes the Insurrection Act, we should listen to what he and Miller have said. Americans need to see their use of it for what it is: an attack on whatever is left of our constitutional order.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.

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