Presidential Discretion and the Insurrection Act - Lawfare
Presidential Discretion and the Insurrection Act
Source: Lawfare
Date of Publication: June 16, 2026
Author: George Croner. Croner is a former principal litigation counsel at the National Security Agency. He is a senior fellow at the Foreign Policy Research Institute, and a member of the Advisory Council at the Center for Ethics and the Rule of Law (CERL) at the University of Pennsylvania Law School.
You can read the full article here.
Ongoing public discussion in the U.S. surrounding recent consideration by White House officials of the possible suspension of habeas corpus and the potential invocation of the Insurrection Act has renewed attention to some of the most significant emergency authorities available to the American presidency. Because both authorities depend upon the existence of specific factual conditions, questions regarding who determines whether those conditions have been met, and what role courts play in reviewing those determinations, have taken on renewed importance. In this context, George Croner’s Lawfare essay offers a timely examination of American presidential discretion, judicial review, and the legal framework governing domestic deployments of military force.
Croner examines the relationship between presidential discretion, judicial review, and the future use of the Insurrection Act in light of recent litigation concerning the federalization of National Guard forces under 10 U.S.C. § 12406. The article argues that recent appellate decisions in Newsom v. Trump and Illinois v. Trump, as well as the U.S. Supreme Court’s ruling in Trump v. Illinois, collectively undermine claims that presidents possess unreviewable authority to determine when domestic military deployments are justified. Instead, Croner contends that courts retain an essential role in interpreting the statutory predicates that authorize the use of military force within the United States and in determining whether presidential assertions of emergency authority satisfy those legal requirements.
The article is particularly concerned with the Insurrection Act, one of the broadest delegations of domestic emergency authority available to the president. Croner argues that because recent judicial decisions have significantly narrowed the practical utility of 10 U.S.C. § 12406, future administrations may increasingly look to the Insurrection Act when seeking to deploy federalized military forces in domestic settings. He notes that the statute contains numerous undefined and highly elastic terms, including “insurrection,” “rebellion,” “unlawful obstructions,” “assemblages,” and “domestic violence,” which create substantial opportunities for expansive executive interpretation absent meaningful judicial oversight.
A central theme of the essay is that the source of presidential authority under the Insurrection Act is statutory, not constitutional. As a result, Croner argues that courts have both the authority and responsibility to determine whether the statutory conditions necessary to invoke the Act have actually been satisfied. The article challenges expansive readings of historical precedents such as Martin v. Mott and Luther v. Borden, arguing that they do not support the proposition that presidential determinations regarding domestic emergencies are immune from judicial review.
For ISSE, the article raises important questions about the relationship between emergency powers, executive discretion, and constitutional governance. Rather than focusing solely on whether a president possesses emergency authority, Croner highlights a deeper issue central to the study of states of exception: who determines when an emergency exists, who interprets the legal boundaries of extraordinary authority, and whether claims of necessity remain subject to meaningful external review. The essay ultimately argues that careful judicial scrutiny is essential to ensuring that exceptional powers delegated by the U.S. Congress do not become vehicles for the normalization of unchecked executive authority.
