David French writes:

[T]here is a statutory basis for military intervention in domestic affairs, and the statute — called the Insurrection Act — is so poorly drafted that I have come to call it America’s most dangerous law.

The Insurrection Act is almost as old as the United States itself. The law dates to 1792, and it permits the president to deploy American troops on American streets to impose order and maintain government control.

There is nothing inherently wrong with granting a president such power, so long as it is properly circumscribed. There are numerous examples of lawless defiance of government authority, from the Whiskey Rebellion in George Washington’s second term, to the Civil War, to southern resistance to Reconstruction and to the Los Angeles riots in 1992 (the last time the act was invoked).

But the statute itself is terribly written. The first section isn’t problematic — it permits the president to deploy the military upon the request of a state legislature or governor, if the legislature can’t convene. That makes sense. If a governor has lost control, he should be able to appeal to federal forces for help.

The next two sections of the statute, however, are much worse. Section 252 of the act gives the president the authority to deploy troops domestically “whenever the president considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any state by the ordinary course of judicial proceedings.”

Section 253 has similar language, granting the president the power to “take such measures as he considers necessary” to suppress “any insurrection, domestic violence, unlawful combination or conspiracy.”

Note the extreme trust placed in the president. He can call out troops when he considers it necessary. There is no congressional oversight. If he believes he needs troops in the streets, he can order troops in the streets. [Continue reading…]