Legal Expert Explains President’s Authority to Protect Federal Officers and Buildings

And staying in that state, you may recall recently a federal agent shot and injured a man in Minneapolis, sparking a wave of protests in the city and before that a grief over the death of the shooting by an ICE agent of Renee Good. We're going to speak all about this and more the latest happening regarding ICE and other updates in Minnesota with George Fishman, Senior Legal Fellow, Center for Immigration Studies. Good to have you with us today, George. With President Trump threatening to deploy troops now to Minnesota, what is the Insurrection Act? Let's start with the legality of it. Well, sure. The Insurrection Act has been around for many, many, many years. It's been used in the past to put down the Whiskey Rebellion by President George Washington. It's been used by Presidents Kennedy, President Eisenhower, President Johnson to protect Blacks during the civil rights era, their ability to vote, Black students' ability to attend an integrated high school in Little Rock. The Insurrection Act allows the President, in cases where the federal law cannot otherwise be enforced, to bring in the U.S. military, either active-duty soldiers or the Federalized National Guard. It's even been used back about 125 years ago to protect Chinese immigrants in the West who were being attacked by a mob. The Insurrection Act should not be feared. It has been used over 30 times in United States history, often to protect American citizens and immigrants who need protection. Well, thank you for that. And just for context, we had some very dramatic footage playing just now. I'm not certain exactly when and where that was from, so I'll be seeking confirmation and I'll be letting you all know. But let's look at how the Act applies here today. Could there be any challenges to that? Any questions around the legality of it today in Minnesota? Oh, sure. I have long advocated for the use of the Insurrection Act to allow the military to be a force multiplier for ICE in enforcing the immigration law in this country. There are about 6,000 ICE agents. There are millions and millions of illegal aliens, aliens who are removable or who have already been removed. The military forces could be a great force multiplier in enforcing the law. Here we have a somewhat different situation where ICE officers are being attacked, are being threatened. Their ability to carry out and enforce the law has been impeded by violent, often violent, protests designed to prevent them from being able to enforce the law. So President Trump has used sort of another statute, which has the same origins as the Insurrection Act, to use National Guard forces to protect ICE agents in Illinois. The Supreme Court ruled late last year that that was likely not a lawful use of that statute because the National Guard was not being used to enforce the law. They were being used to protect federal forces. If active-duty military are used to protect ICE agents from violent attack, from efforts to impede their ability to enforce the law, the same issue is likely to come up. So it'll be litigated whether protective services, protecting federal buildings, protecting federal officers, is an appropriate use of the Insurrection Act. We'll have to see. But you have to keep in mind, putting aside the Insurrection Act, it's long been assumed that the President has inherent constitutional authority to protect federal buildings, federal officials from violent attack. And so even if the Insurrection Act potentially, though I don't think it will be, but potentially is off the table here to protect ICE officers, the President can rely on his inherent authority as the Commander-in-Chief, as the President of the United States, to use military forces to protect ICE officers from attack. So let's take a look now at the protesters themselves. How can anti-ICE protesters communicate their message in a way that neither breaks the law nor endangers them in the process? They have the same First Amendment rights as any other United States citizen. They can demonstrate, they can march, they can protest, they can speak. But what they can't do is employ violence. What they can't do is act with the goal of disrupting law enforcement operations. Interfering with law enforcement operations is a crime. That they can't do. They can certainly march and speak and express their points of view as all U.S. citizens are able to do. But violence, making it impossible for the law to be enforced, they don't have that right. And what role do you think state leadership plays in ensuring these protests remain peaceful? Well, I presume, well, not just presume, I think the Trump administration has pointed out that the rhetoric being used by the governor of Minnesota, by the mayor of Minneapolis, has just encouraged these violent protests. And so if the state officials, the local officials in Minnesota, instead of fermenting and advocating and encouraging violent protests, were to call for peace, peaceful protests, which I'm glad the governor has recently done in Minnesota, but also allow their local police, state police, to keep order and to keep the peace. If state and local police in Minnesota were doing their job of keeping the peace, there wouldn't be the need in the first place to send in the National Guard, to potentially send in active duty military to protect ICE officials, ICE officers, because state and local police would do it. They're not doing it. Well, certainly we're all hoping that this can really be de-escalated and very soon. Thank you so much for your time today and your expertise and insights. George Fishman, good to speak with you. Thanks so much for having me.