Can President Trump Use the Military to Protect ICE Personnel from Attack
. . . Even by Philadelphia District Attorney Larry Krasner?
By George Fishman on March 30, 2026
Following President Trump’s dispatch of Immigration Czar Tom Homan to Minneapolis in January, the violent attacks on Department of Homeland Security officers have subsided. Nevertheless, the intense opposition to immigration enforcement among certain hard-left networks means such violence could resume, whether in Minnesota or elsewhere in the country. And renegade states and localities could also attempt to disrupt enforcement. On multiple occasions this year, Philadelphia District Attorney Larry Krasner has threatened to arrest and prosecute ICE agents, to hunt them down like Nazi war criminals.
If that were to happen, what legal options would President Trump have to call on the U.S. military to protect DHS personnel from attack by violent protestors intent on disrupting efforts to enforce our nation’s immigration laws, or from malicious arrests and prosecutions by renegade states and localities seeking to achieve the same result?
Summary
What legal options does President Trump have to call on the U.S. military to protect Department of Homeland Security personnel from attack by violent protestors intent on disrupting efforts to enforce our nation’s immigration laws?
Do these same legal options exist if the attempts at disruption come from renegade states and localities? On multiple occasions this year, Philadelphia District Attorney Larry Krasner has threatened to arrest and prosecute ICE agents, to hunt them down like Nazi war criminals, if they dare to enforce the law in the City of Brotherly Love. In 2022, the Pennsylvania House of Representatives had impeached Krasner, contending that Philadelphia “ha[d] descended into an unprecedented crisis of lawlessness” as a result of his actions.
In December, the Supreme Court in Trump v. Illinois tentatively concluded that 10 U.S.C. § 12406(3), which President Trump utilized to call into federal service the Illinois and Texas National Guards to protect DHS personnel in the Chicago area, cannot be used for such purpose. The Court concluded that this law only authorizes a president to use the National Guard to “execute” the law, and serving a protective function does not constitute executing the law.
The U.S. Solicitor General indeed told the Court that the National Guard’s role in Chicago was not to execute the immigration laws or engage in civilian law enforcement functions. However, he argued that, apart from any specific legislation, a President has the inherent constitutional power to use the military for the protection of federal properties and federal functions.
Justice Alito complained in dissent that while the Court majority apparently agreed that a president possesses this inherent protective power, the majority failed to explain why President Trump could not use this inherent authority to call on the National Guard. Alito also objected to the majority’s seeming suggestion that the Posse Comitatus Act, which generally prevents the military from executing the laws, would stand in the way of a president’s inherent constitutional power.
Rather than affirming a president’s inherent protective power under the Constitution, I believe it is more accurate to say that the majority in Trump v. Illinois simply acknowledged that the executive branch has long argued that the president has such an inherent power. However, prior Supreme Court opinions, most notably In Re Neagle in 1890 and In Re Debs in 1895, seem to have clearly recognized a president’s inherent protective power, as William Rehnquist argued when he led the Department of Justice’s Office of Legal Counsel (before himself becoming the Supreme Court’s chief justice).
While the Supreme Court has, at least tentatively, ruled out a president’s use of 10 U.S.C. § 12406(3) to call a state’s National Guard into federal service to protect DHS personnel, President Trump may still have the Insurrection Act available for this purpose (and also available to call on the regular military). However, the Court’s decision puts into some question whether the Insurrection Act itself permits the military to perform a protective function. The Supreme Court has suggested for well over a century that a president has an inherent constitutional protective power over federal personnel and property, which would eliminate the need for any statutory authority. The question is whether this remains the belief of the Court’s current majority.
If the president does have authority through the Insurrection Act, or indeed through the Constitution itself, to use the military to protect federal personnel and the carrying out of federal functions, there is seemingly little reason why he could not use the military to protect federal personnel and functions from renegade states and localities seeking to impede the enforcement of federal law through malicious arrests and prosecutions of federal law enforcement officers.
https://cis.org/Report/Can-President-Trump-Use-Military-Protect-ICE-Personnel-Attack
