The Insurrection Act is a dangerous centuries-old federal statute that authorizes the president, with few restraints, to deploy the U.S. military inside the United States to suppress threats the president perceives to the constitutional order. Commentators have recently proposed tightening the law following reports that former President Donald Trump and his advisers are planning to use it aggressively for law enforcement and to quell domestic disturbances if Mr. Trump is once more elected.
This focus on Trump is understandable but inadequate in capturing the compelling case for reform. It has been clear for decades that the poorly drafted and antiquated law needs revision. There is an opportunity in 2024 to make targeted changes to the statute’s main flaws — and, critically, in a way that both parties would have good reason to support.
The Insurrection Act empowers the president to order the armed forces and state militias into action within the United States and against American citizens in numerous ill-defined circumstances. The president can, for example, deploy military force where states call for federal assistance in quelling an “insurrection” or as the president “considers necessary” to enforce federal law against “obstructions,” “combinations” or “assemblages” or to quell any “domestic violence” or “conspiracy” that impedes the enforcement of constitutional rights or even “the course of justice” under federal law.
The Insurrection Act has been invoked more than two dozen times in American history. Presidents have relied on it, for example, to respond to riots (as President George H.W. Bush did in 1992 in response to violent protests following the failed prosecution of the police officers who beat Rodney King) and to meet defiance of federal law (as Presidents John F. Kennedy and Dwight Eisenhower did to enforce court-ordered desegregation of public schools in Southern states).
The problem is that the act has very broad and imprecise triggers to its operation and no temporal constraints, and it does not specify any role for Congress to assess, shape or limit the president’s response to an emergency. [Continue reading…]