The Insurrection Act and the Dilemma of Protest
While authoritarian regimes can take office both through elections or insurrections, in history there have often been additional incidents that authoritarians use to further catalyze and solidify power. Back when Trump was president the first time around, many talked about a “Reichstag Moment” – an event that would lead to an inevitable crackdown – (1) and although plenty of bad things happened, nothing back then quite tipped the scales to unleash widespread governmental repression.
A second Trump administration will likely be different. In the 2024 movie CIVIL WAR, there is mention of an “Antifa Massacre” incident leading to the massive war, although it’s not clear if antifascists were massacred or did the massacring. Although massacres in history have sometimes energized a subsequent revolution, like the Boston massacre in colonial America or the Russian Bloody Sunday massacre of 1905, at other times massacres have been “Reichstag Moment” incidents exploited by authoritarians for suppressing resistance, justifying repression, or consolidating power. Examples of the latter include the Wounded Knee massacre of 1890, the Rosewood massacre of 1923, the Kent State shooting of 1970, and the Tiananmen Square massacre of 1989.
I spent some time chasing down justifications for use of military force against US citizens, and it seems that it would likely have to take place under something called the Insurrection Act. Written in 1792 shortly after the birth of the Constitution (when the concept of a federated government was still under development) the Insurrection Act was promulgated to deploy military force inside the United States in order to suppress rebellion. It wasn’t an easy pill for a nation that grew out of resistance to (colonial) authority, but early on in the fledgling republic it was thought to be a necessary evil; according to the Brennan Law Center, “…George Washington and John Adams used it in response to early rebellions against federal authority,” such as the Whiskey Rebellion, and Lincoln invoked it at the start of the Civil War. I was surprised to learn that President Ulysses Grant also used it to crush the early Ku Klux Klan in the 1870s.
The legal groundwork then becomes complicated, because poised against the Insurrection Act is the Posse Comitatus Act, which bars federal troops from use of force in civilian situations. According to the Brennan Law Center, Posse Comitatus was created in the late 1870s to keep the Feds out of the Jim Crow south (perhaps in direct response to Grant’s earlier use of the Insurrection Act?). The Brennan Center says that in addition to protecting civilians from Federal force, Posse Comitatus generally expresses a vestigial wariness about governmental force left over from the days of British rule, and is also an “expression in the Constitution’s division of power over the military between Congress and the president, and in the guarantees of the Third, Fourth, Fifth, and Sixth Amendments.”
Added to the two above is the confusing common public parlance about “martial law,” for which it turns out a president cannot make a declaration; rather, martial law refers to the stepping-in of the military under a general’s direction or under declaration of a governor in domestic situations. Martial law has been declared numerous times in US history, including during riots, strikes, anti-klan riots, the Tulsa Race Riot, labor disputes such as the 1892 and 1899 Couer D’Alene mining wars, and five times to counter desegregation decrees in the US south. In a comprehensive list of 68 cases of martial law, the Brennan Center indicates that not once was the martial law declaration under authority a US president, although President Roosevelt probably had a big influence in its use in 1941 Hawaii.
Until looking it up I’d forgotten how numerous and massive the protests against the first Trump administration were, even before he took office. Before and after his inauguration, they include, in semi-chronological order, the Portland riots, November 2016; other protests in November 2016; the Million Women march, January 21, 2017; Black Bloc at Milo Yiannopoulos, February 2017; peaceful protesters tear-gassed at the Trump photo-op, June 2020; and George Floyd protests all summer, 2020, including one in which Trump was taken to a bomb shelter in the White House; Many of the protesters were liberals or affinity/interest groups, but others represented cases where antifascists turned out against the fash.
Which brings us to the dilemma for antifascists about disruptive protests. In 2017, Libertarian Socialist Noam Chomsky roundly criticized antifascists, saying that “antifa” was “a gift to the right,” who wanted an excuse for violent suppression of the left; “…it’s a minuscule fringe of the Left, just as its predecessors were” (presumably he means here the German Communists, especially in the Kiel Rebellion and the Spartacus Uprising). In the wake of Charlottesville, Chomsky said that what antifascists were doing was “wrong in principle” and ”self destructive,” despite the fact that antifascists likely saved the life of Cornel West on the Friday of the torch march (2) and saved the lives of others when members of Redneck Revolt deterred Heather Heyer’s assassin from breaching Justice Park earlier on Saturday. Around the same time, progressive pundit Chris Hedges made the similar claim that the fash and antifascists “mirror” each other; in mentioning the violence of the alt-right, he added that “behind the rhetoric of antifa, the Black Bloc and the so-called ‘alt-left’ …is the same lust for violence.” While making a bitter and properly damning assessment of American governance, he had to add that Black Bloc actions in Berkeley against Milo Yiannopoulos were about “elevating their self-image” and “appearing heroic;” he then quoted a SPLC statement about finding “another outlet for anger and frustration and for people’s desire to do something” instead of confronting the Far Right.
Sorry for all the weighty background material, but this journey is a long-winded way of getting us back to the Insurrection Act. Although anti-Trump protester spirit right now is plenty worn out, at some point, even if he only implements 10% of his threats, there’s going to be plenty to protest. And these threats from him and allies include the threat to use active military against protesters. Plenty of different groups, from liberals to affected or vulnerable minority/affinity groups, *should* be protesting, or in the case of antifascists, counter-protesting against the Far Right. Antifascists in such situations are going to be not only aggressively countering the fash, but, as we saw under the first Trump presidency, used increasingly as security/protection by groups who have become more accepting of them. (3)
I hate to lend credit or legitimacy to Chomsky and Hedges’ critiques of antifascists, which have been soundly and rightly criticized. But antifascists, and even regular liberals and other interest groups, will be in a tough position in 2025, because under the presumed “mandate” of the 2024 election, a newly empowered Trump administration is going to feel even more justified and emboldened, and it seems that whatever response occurs will likely be justified under the Insurrection Act
I could be wrong about some or all of this. Maybe Trump has already “won” and won’t have to do much to keep the “left” in line. Leftists and centrists (liberals) are worn out from the past 8 years and a lot of the wind seems to be taken out of their spirits. Maybe there won’t be many protests, or maybe the protests that do happen won’t be disruptive. Maybe the National Guard or active-duty military will refuse orders to fire, although the penalties for disobeying orders are swift while the process for restitution is long. But, while it makes me feel really crappy to say it, I think that the full-fledged descent of authoritarian dictatorship in the US is likely going to emerge in the wake of a massacre. I know one thing for sure: I remember the arguments on my school bus the morning of the Kent State shootings, and if antifascists and liberals are killed in a massacre, a substantial portion of the US will say they had it coming.
Notes
1. Soon after the Nazis took power in early 1933 the Reichstag fire resulted in the Enabling Act, which allowed the government’s executive branch (Hitler and his cabinet) to initiate use of force on citizens without the consent of parliament; from that time on the Enabling Act was the legal justification for the litany of abuses to follow.
2. About the prayer service at St. Paul’s Memorial Church on the University of Virginia campus at Charlottesville, West famously said that “we would have been crushed like cockroaches if it were not for the anarchists and anti-fascists.”
3. As the need for arms became obvious and liberal disdain for them eased, armed leftists became more welcome at protests during the first Trump era and afterwards. In addition to Charlottesville in 2017, armed antifascists protected the Seattle Autonomous Zone in 2020, Texas in 2023, and too many other places to mention here.