James G. Hodge (Arizona State University (ASU) – Sandra Day O’Connor College of Law), Taylor Brown, & Kimberly Hartle have posted Insurrection Powers and the Public’s Health on SSRN. Here is the abstract:
President Trump and his administration have repeatedly threatened to invoke insurrection powers and unleash U.S. military and National Guard members in American cities in response to civil uprisings and alleged interferences with immigration officials’ actions. In so doing, they raise a specter of significant constitutional clashes over the use of these antiquated emergency authorities. To the extent Congress is unwilling to constrain Presidential discretion, the U.S. Supreme Court may be called on to clarify the scope and limits of Insurrection Act powers.