For over a month, social media posts have suggested that President Donald Trump would declare martial law on April 20. This declaration would typically mean the suspension of civil law while military authorities assume control over civilian operations, such as the judicial system.
Many of these posts, however, appear to confuse martial law with the potential activation of the Insurrection Act of 1807, which has been cited in a recent executive order.
On March 19, a Reddit user remarked, “I just came across this executive order (section 6-b) which states Trump will invoke the Insurrection Act of 1807 on April 20th, which would effectively declare martial law. That’s the end of the USA.”
This narrative has spread from Reddit to Facebook, as well as videos circulating on TikTok, X, and Threads.
Trump’s executive order from January 20 declared a national emergency at the U.S. southern border, mandating a report from the secretaries of defense and homeland security within 90 days regarding border conditions. This report should include “any recommendations regarding additional actions necessary to achieve complete operational control of the southern border, including whether to invoke the Insurrection Act of 1807,” as stated in the executive order.
April 20 serves as the 90-day deadline.
If the Insurrection Act is invoked, Trump would gain the authority to mobilize federal military personnel to enforce federal law at the U.S. southern border. However, legal experts informed PolitiFact that this action would not equate to martial law. They expressed skepticism about Trump’s legal capacity to implement martial law as it is typically understood, and Trump has not publicly addressed the subject of martial law.
In a communication to PolitiFact, the Defense Department confirmed its collaboration with the Homeland Security Department to prepare the report on southern border conditions requested in the executive order.
PolitiFact reached out to both the Homeland Security Department and the White House but did not receive a response.
What would invoking the Insurrection Act enable?
The Insurrection Act permits the temporary suspension of a U.S. law that prevents federal troops from executing civilian law enforcement duties.
This law can be invoked by a president who determines there are “unlawful obstructions, combinations, or assemblages, or rebellion” making it “impracticable to enforce” U.S. law “through the ordinary course of judicial proceedings.” In such scenarios, the Insurrection Act empowers the president to direct federal troops “as he deems necessary to enforce laws or suppress the rebellion.”
The Act is broadly written and does not specifically define terms like “insurrection” or “rebellion.” In a ruling from 1827, the U.S. Supreme Court stated that the authority to decide whether a situation warrants invoking the Insurrection Act “belongs exclusively to the President.”
Chris Edelson, an assistant professor of government at American University, noted that the law provides “limited authority for the president to utilize the military in response to genuine emergencies – situations where regular operational law has broken down.”
The act has been invoked in circumstances such as when southern governors resisted school integration and during the 1992 Los Angeles riots, which erupted after four white police officers were acquitted for beating Black man Rodney King.
Experts have expressed doubts that the current situation at the southern border represents a breakdown or obstruction of federal law that justifies invoking the Insurrection Act as intended by the law.
Tung Yin, a professor at Lewis and Clark Law School, stated that it’s difficult to see how immigrants entering the country unlawfully could be obstructing state or federal laws.
Obstruction, he noted, typically involves something akin to an invading army or severe riots that leave the government unable to maintain order.
Martial law, in general, refers to enforcing military law on civilian populations.
Edelson clarified that the Insurrection Act “does not grant the president the ability to fully replace regular authorities with military rule.”
Chris Mirasola, an assistant professor at the University of Houston Law Center, explained that military law is more stringent and less protective of individual rights than civilian law. He emphasized that even if the Insurrection Act were invoked, U.S. constitutional protections would still remain in effect.
Yin also mentioned that when a president calls upon the military via the Insurrection Act to enforce civilian law, “that might be perceived as ‘martial law’ by someone unfamiliar with the concepts. However, it doesn’t equate to a military government as commonly understood.”
Is Trump able to impose martial law at the southern border?
The U.S. Supreme Court described the concept of martial law in a 1946 ruling as having “no precise meaning,” noting it’s not specifically defined in the Constitution or by statute.
Edelson commented that due to this lack of clarity, “it’s uncertain at the federal level whether presidents have the authority to declare martial law.”
Mirasola pointed out that while other nations’ constitutions often outline conditions for declaring martial law, the U.S. Constitution lacks such specificity.
Despite this, martial law has been declared in the past. For example, following the Japanese attack on Pearl Harbor in 1941, martial law was enforced in Hawaii for three years. President Abraham Lincoln also declared martial law in various regions during the Civil War, a measure reinstated by President Andrew Johnson later on.
At that time, the Supreme Court effectively ruled that martial law could only be declared in areas experiencing active warfare, as highlighted by an 1866 ruling that established martial law cannot be enacted unless civilian courts are closed and nonfunctional.
Consequently, Mirasola expressed that he sees no legal or constitutional grounds for Trump to declare martial law to manage the southern border, which “is not an area of active hostilities, despite the administration’s portrayal of cartel actions.”
Mirasola emphasized, “The circumstances in which presidents have previously invoked martial law, and how the Supreme Court has interpreted it, are extremely narrow. It would necessitate active hostilities on U.S. soil that inhibit civilian legal processes.”
Experts suggested that Trump’s remarks regarding military authority might contribute to the martial law speculation. In October, he stated that “radical left lunatics” in the U.S. “should easily be dealt with, if necessary, by the National Guard, or if it truly comes to that, by the military.”
During nationwide protests in June 2020, following George Floyd’s death, Trump indicated that if governors failed to deploy the National Guard effectively to maintain order, he would instruct the U.S. military to “quickly resolve the situation for them.”
Trump’s tendency to challenge established constitutional norms further complicates the discourse.
He has attempted to eliminate birthright citizenship through executive action, a measure blocked by several federal judges, one of whom deemed the effort “blatantly unconstitutional.”
In mid-March, Trump claimed that a Venezuelan gang was invading the U.S. and invoked the Alien Enemies Act of 1798, a seldom-used statute allowing the detention or deportation of foreign nationals from enemy nations without due process during wartime. The Supreme Court recently lifted a temporary injunction against the deportation of Venezuelan migrants under this act, yet did not determine the constitutional validity of Trump’s application of the law.
Edelson also noted the events of January 6, 2021, when the U.S. Capitol was stormed, and pointed out that Trump granted pardons to approximately 1,500 individuals charged with crimes related to that day.
*Caryn Baird contributed to this report.*
