Joseph Nunn writes:

The Insurrection Act is a nuclear bomb hidden in the United States Code. Enacted in the early years of this country’s existence, it was subsequently modified several times, as Congress greatly expanded the President’s powers under the law during the bloody tumult of the Civil War and Reconstruction. It has largely been ignored ever since. But today, the law has garnered renewed attention and raised concerns in many quarters for a reason that should echo ominously this election year: It gives the President virtually limitless discretion to use the military as a domestic police force.

Allowing the President unbounded authority to deploy troops domestically goes against core constitutional principles. It also invites abuse. In a host of scenarios—from political protests to the crisis at the Southern border—the Insurrection Act, in the wrong hands, could be used in ways that are more likely to cause emergencies than to resolve them. In such cases, the courts would likely deem themselves powerless to intervene, and Congress might be unable to muster the supermajority necessary to restrain the President.

This state of affairs is principally a congressional failure, and Congress must act to fix it. Congress should reform the law to narrow and clarify when and how it may be used and to implement meaningful safeguards against abuse. The United States has been extraordinarily lucky that the Insurrection Act has not been misused more frequently. There is no reason to believe this good fortune will continue forever. [Continue reading…]