Addressing reader concerns about the Insurrection Act

April 9, 2025

We have a lot of ground to cover in this edition of the newsletter, but I want to highlight a discussion in the latter half of the newsletter. On Tuesday, I received a constant stream of panicked emails from readers forwarding stories (mainly circulating on Facebook) claiming Trump will invoke the Insurrection Act on April 20, 2025. Facebook’s fear-promoting algorithm was working overtime on Tuesday, suggesting that we are two weeks away from martial law. We are not.

The stories forwarded by readers initially focus on a kernel of truth—i.e., that Trump intends to invoke the Insurrection Act to assist with immigration enforcement at the Southern border--but then quickly pivot to speculations about what Trump “might” do. The articles assume that “the military” will violate the Constitution by obeying a hypothetical order to use force against American citizens. As explained below, we have more reason to trust the professionalism, patriotism, and loyalty to the Constitution of the US military than that of Donald Trump.

I expect that apocalyptic stories about the invocation of the Insurrection Act on April 20 will gain traction over the next two weeks. Please don’t become an unwitting instrument of fear and misinformation that may serve Trump's purposes

Yes, we must stand guard and be alert to potential abuse of the Insurrection Act.

We must be prepared to use all means possible to prevent abuse of the Insurrection Act by Trump.

But to suggest that we will soon be under military rule is fearmongering that undermines confidence in our democracy and is offensive to the professional and loyal men and women of the US military.

But most of all, do not let fear-based algorithms shake your faith in America. We are bigger than Trump and will outlast him by centuries, long after Mark Zuckerberg has spent all the click-bait money he earned on Tuesday by frightening Facebook users. Don’t be Mark Zuckerberg’s victim. We control our destiny. If you don’t believe that proposition with all your heart and soul, we are lost.

We are not potted plants. We are not sheep. We cannot recoil in fear because someone speculates about what Trump “might” do. What Trump “might” do is determined in large part by what we do to resist Trump. Be part of the solution by acting boldly and bravely in the face of understandable fear and anxiety.

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Trump tariffs go into effect Wednesday; market chaos continues

Traders attempted a rally on Tuesday, but Trump caused more chaos by announcing additional tariffs on China—increasing the rate to 104% of the value of the imported goods. As a result, the markets suffered significant declines for a fourth straight day. More ominously—and predictably—they moved the world toward a trade war. See Reuters, Trump's latest tariffs loom, set to deepen global trade war.

Although Republican Senators are mumbling about opposing the tariffs, they are still searching for their backbones. (Hint: Put your hands on your butt, then move your hands up about 12 inches. If you feel something hard in the middle of your back, that is known as a “backbone.” If you need instructions on how to use it, read the emails and listen to the phone calls from your constituents.)

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Trump plans to humiliate BigLaw firms who capitulated to his demands

The BigLaw firms that surrendered to Trump are about to learn that doing so only encourages Trump to come back for more. On Tuesday, Trump suggested that he would ask those law firms (Skadden, Paul Weiss, Kirkland & Ellis, and Willkie Farr) to devote their “pro bono” hours to defending his tariffs and helping coal companies with lease negotiations—for free. See Trump Says He'll Enlist Big Law Dealmakers for Coal, Tariffs.

In a meeting with coal producers, Trump said,

We’re going to use some of those firms to work with you on your leasing and other things. We’re going to use them and we’re getting them for the right price because we need a lot of talent. We have a lot of countries coming in to make deals [on tariffs].

Interestingly, representing coal producers and the US government in trade negotiations are not considered as pro bono engagements under the ABA definition. See ABA Model Rule 6.1.

The super-smart, all-powerful leaders of the nation’s most prestigious firms didn’t think things through before surrendering to Trump. That’s what happens when maximizing profits above all else clouds your thinking.

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Turmoil at the Internal Revenue Service

It seems as though Trump wants to undermine the ability of the IRS to collect taxes and enforce compliance with US tax laws. On Tuesday, reports emerged that Trump is going to shutter the DOJ Tax Division—which brings civil and criminal actions to enforce compliance with the tax code. See Talking Points Memo, DOGE to Shutter DOJ Tax Division.

Although Trump and Musk may be unclear on the concept, collecting tax revenue is essential to creating and maintaining the infrastructure that imparts value to their businesses. A thriving economy needs highways, bridges, airports and air traffic control, utility regulations, safety regulations that give consumers confidence in products, courts to adjudicate disputes, and schools to educate a workforce.

If the IRS can’t collect money (because it has no enforcement authority), it raises the obvious question, “Why would anyone pay their taxes if no one is going to do anything about non-payment?”

One answer to that question is that the IRS can place levies on your bank accounts and wages if it believes you aren’t paying the amounts owed. But the IRS is terminating 25% of its workforce.

To be clear, I am not suggesting that people avoid paying their taxes. I am saying that Trump hasn’t thought through the implications of doing away with the DOJ’s Tax Division and cutting 25% of the IRS workforce.

The one function that Trump and DOGE want to use the IRS for is likely illegal. Trump is seeking to force the IRS to confirm information about the location of immigrants who pay taxes but are not legally residing in the US. Estimates suggest that immigrants who do not have legal US residency pay $100 billion per years in federal and state taxes. See Tax Policy Center, Yes, Undocumented Immigrants Pay Taxes—and Receive Few Tax Benefits.

Having the IRS share information from tax returns so that ICE can apprehend immigrants not legally in the US is a disincentive to them to pay federal taxes. It is also illegal for the IRS to share taxpayer information for any purpose other than collecting or enforcing tax obligations.

How illegal is it for the IRS to share taxpayer information? Well, on Tuesday evening, the acting Director of the IRS resigned in protest over a demand by DOGE to give ICE access to residence information about immigrants who do not have legal residence in the US. See AP, IRS acting commissioner is resigning over deal to send immigrants’ tax data to ICE, AP sources say.

An internal IRS estimate suggests that the cutbacks and turmoil caused by DOGE will result in a $500 billion revenue shortfall by April 15, 2025. See Economic Times, Half a trillion vanished? IRS bombshell as agency warns DOGE may have cost U.S. a shocking $500 billion; here's the full detail.

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Legal developments

A federal judge ordered the Trump administration to reinstate access to the Associated Press at White House events where other major press outlets are allowed to attend. See Politico, Trump must reinstate Associated Press to White House press pool, judge rules.

The Supreme Court ruled that some plaintiffs in a suit to reinstate 60,000 federal workers do not have standing to bring the claims. The Supreme Court lifted a lower court order to reinstate the workers and remanded the case to the lower court for further proceedings. See AP News, Supreme Court blocks order requiring Trump administration to reinstate workers.

As explained by Jacob Knutson in Democracy Docket,

The Supreme Court said its stay only addressed the claims brought by the nonprofit organizations, meaning the claims brought by unions in the case were not affected.

Other court orders requiring the Trump administration to reinstate fired federal workers remain in effect.

See Democracy Docket, Supreme Court Pauses Order Requiring Trump to Reinstate Thousands of Federal Workers.

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Trump targets Cornell and Northwestern

Trump is freezing billions in grants to two more universities over their previous efforts to promote diversity and over alleged failures to address antisemitism on their campuses.

See NYTimes, Trump Administration Freezes $1 Billion for Cornell and $790 Million for Northwestern, Officials Say.

A spokesperson for Cornell said, that the affected grants “supported research that they described as ‘profoundly significant to American defense, cybersecurity and health.’”

To make the obvious point, canceling grants made pursuant to a congressional appropriation violates Article I of the Constitution and the Impoundment Control Act of 1974. Such unilateral cuts are illegal and unconstitutional. It is reprehensible that the Republican-controlled Congress will do nothing to address this massive, ongoing assault on constitutional order.

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Stories about Trump's invocation of the Insurrection Act causes panic among readers

As noted above, I was deluged with emails from readers asking me to comment on a handful of stories that raised the possibility that Trump would invoke the Insurrection Act on April 20, 2025, and would thereafter use the US military to suppress peaceful protests and arrest American citizens. (I heard from another Substack author who said they were also being deluged with such emails.)

Before I address the issue, let me say that we should take seriously the notion that Trump may invoke and abuse his authority under the Insurrection Act. But that does not mean that we must engage in or accept as pre-ordained truth that Trump will use the Act to establish a military dictatorship in the US.

“Yes,” we must take Trump seriously, and “No” we must not engage in catastrophism that will only serve to frighten and demotivate people who should be busy defending democracy.

I will not link to any of the stories because I do not want to give them further circulation. In short, the articles generally start with the fact that Trump may invoke the Insurrection Act (he will) and then engage in speculation about what “might” happen next, culminating with Trump declaring martial law to round up “leftists” from their homes.

One of the articles describes a “tabletop exercise” designed as a thought experiment to determine what legal strategies could be used to stop Trump from abusing the Insurrection Act. The thought experiment did not account for the likelihood of events occurring—and the author did not suggest those events would happen. But it appeared that many readers assumed that the tabletop exercise was a prediction of what would happen.

[I will note that the above article is well-intentioned and includes sound advice for de-escalating and avoiding provocation. Except for the description of the tabletop exercise, it is otherwise a helpful article. But the description of the tabletop exercise is what set people off.]

A second article seems to adopt conspiracy thinking, positing a massive “false flag” operation involving fake terrorist bombings and staged assassinations as an excuse for imposing martial law. The author also posits that Trump will call on “good Americans” to take up arms against other Americans to help impose martial law.

The readers who forwarded the articles seemed to disregard the limited scope and authority of the Insurrection Act. For a sober and even-handed description that does not include the distracting speculation, see Joseph Nunn, The Insurrection Act Explained | Brennan Center for Justice.

As Nunn explains,

The Insurrection Act does not authorize martial law. The term “martial law” has no established definition, but it is generally understood as a power that allows the military to take over the role of civilian government in an emergency. By contrast, the Insurrection Act generally permits the military to assist civilian authorities (whether state or federal), not take their place. Under current law, the president has no authority to declare martial law.

A key concept is that the use of the military under the Insurrection Act is designed to assist civil law enforcement in restoring order. The Insurrection Act DOES NOT authorize the president to impose “martial law.”

But as Nunn also explains, several provisions of the Insurrection Act are vague, and Trump could exploit that vagueness to expand use of the Insurrection Act beyond its intended purpose. Fair point—which brings us to the second flaw in the reaction to the articles.

The panicked emails from readers presumed that Trump would call upon the military to use force against American citizens and that the members of the military would willingly obey. I do not believe they will.

The US military is composed of men and women who are younger, more diverse, less affluent, and more aspirational than the average American. They are in the military to get a jump start on a productive life and to build a future for themselves and their families.

We must not fetishize the military. It is not a dark, evil force poised to spring against the American public. Nearly half of enlisted personnel are in the National Guard—meaning that during the week, they are the checkers at your grocery store, the men and women who teach your kids, your tax accountants, and the workers repairing your roads. They are your neighbors and friends. They are American citizens. Their average age is 28, and more than half of them are married with children or are single parents with children.

Most importantly, they are professional and loyal to the Constitution. You should have more confidence that they will follow the Constitution than Trump. Indeed, if Trump ordered the military to turn on the American people, the general officers know that their ranks would be decimated by mass desertions by decent Americans who will not turn on other decent Americans. An order to turn against the American people would effectively disband the military as an effective fighting force.

All of the imagined fears about the Insurrection Act are based on a groundless assumption that disregards the loyalty and professionalism of the military. Yes, Trump will invoke the Insurrection Act to assist with immigration enforcement at the Southern border. No, the military is not going to act as Trump's personal army. Set that fear aside,

Some readers might challenge my beliefs, saying that the military includes white supremacists and neo-Nazis who would do Trump's bidding. That is certainly true. Secretary of Defense Pete Hegseth is a perfect example of unquestioning loyalty to Trump based on white nationalism.

But Hegseth is also a perfect example for another reason: When his unit was deployed to Washington after January 6, his officers told him to stay home. Why? Because they understood that he was an outlier, a soldier who could not be trusted to follow the law and the Constitution. True, there are other “Pete Hegseths” in the military—just as there are in the civilian population at large.

In short, the military is us. It is an all-volunteer force that represents America with all of its strengths and weaknesses. But it is not a menacing force of “others” who will attack their friends and neighbors, parents and children, colleagues and fellow citizens.

Once you remove the flawed assumption that the military will transform itself into Trump's private paramilitary force, it is clear that the invocation of the Insurrection Act will be a limited, legally contested, ineffective, wasteful show of force at the border to distract from the fact that Trump is destroying our economy and government infrastructure.

I understand that many readers will disagree with my assessment. Many still have living memories of Nazi Germany, the Holocaust, and the Jim Crow south. I respect those feelings. If that is how you feel, the question is, “What is the best way to prevent it from happening again?”

It is not to amplify articles that include speculations about false flag operations, staged terrorist attacks, and roving militias of amateur extremists who magically adopt military discipline and battlefield tactics when deputized by Trump.

The best option is to become (or remain) active in the largest civil resistance movement in the last 75 years to help ensure that the few guardrails around Trump prevent him from even attempting to abuse the Insurrection Act.

I hope you will choose the option of resistance and action over amplifying articles that may help to normalize the notion that Trump can and will abuse the Insurrection Act. We must be realistic and alert, but we must also keep calm and carry on.

Concluding Thoughts.

Thanks for listening. Stay strong, and do not surrender to imagined fears. We need you for the real fight!

Talk to you tomorrow!

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