Trump-proofing the Insurrection Act
This appeared in The Washington Post:
The origins of the Insurrection Act lie in a 1792 law that enabled President George Washington to lead troops against the Whiskey Rebellion. President Abraham Lincoln invoked the Insurrection Act at the dawn of the Civil War. President Ulysses S. Grant used it to combat racial terrorism in the South during Reconstruction. Presidents Dwight D. Eisenhower, John F. Kennedy and Lyndon B. Johnson employed it to enforce court orders on school desegregation. The Insurrection Act gave California’s governor a legal basis to ask President George H.W. Bush for military help during the 1992 Los Angeles riots.
Though the emergency powers that the Insurrection Act confers are inherently susceptible to abuse, presidents’ respect for democratic values and constitutional norms has by and large prevented that.
Having gone unused since 1992, the Insurrection Act is perhaps obscure to the public today. It deserves more attention, given that there could be a second term for former president Donald Trump, who not only lacks respect for democratic norms but also actively encouraged a mob to descend on the Capitol on Jan. 6, 2021.
The law grants a president the power to “take such measures as he considers necessary” to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy.” It does not define those terms. Nor does it require the president to get permission from state leaders. While the Posse Comitatus Act of 1878 generally restricts the use of the armed forces in domestic law enforcement, there’s an exception for other acts of Congress, which would cover-the Insurrection Act.
Trump’s associates have reportedly drafted plans to invoke the law on his first day in office, to allow him to deploy the military against civil demonstrations. A partnership of right-wing think tanks, dubbed Project 2025, has drawn up executive orders to do so. Jeffrey Clark, a former Justice Department official who is one of the unnamed co-conspirators in Trump’s indictment in the federal election interference case, is leading this work. Trump has openly expressed regret for not using the Insurrection Act during the rioting that followed Black Lives Matter protests in the summer of 2020, bowing to governors who asked him not to send federal troops. “The next time, I’m not waiting,” he said at a November rally.
A bipartisan group of former top government lawyers recently unveiled a thoughtful set of principles to reform the Insurrection Act. They’re careful to say that it’s not about Trump and that both parties should want to preempt potential tyranny by the opposition. That makes sense. After all, some on the left urged President Biden to invoke the Insurrection Act this year to take over the Texas National Guard during a dispute about enforcing immigration laws.
Convened by the nonpartisan American Law Institute, the working group was led by Harvard Law professor Jack Goldsmith, who ran the Office of Legal Counsel under President George W. Bush, and New York University law professor Bob Bauer, who is Biden’s personal lawyer (this work is unrelated to that role) and a former White House counsel for President Barack Obama. They previously partnered to clean up the Electoral Count Act after its weaknesses were highlighted on Jan. 6, 2021.
They propose clarifying that no president can deploy the military under the Insurrection Act unless there’s violence that “overwhelms the capacity of federal, state, and local authorities to protect public safety and security.” They would limit troop deployments to 30 days without additional congressional authorization, establish a procedure to fast-track such votes, require prior consultation with state governors, and compel a presidential report to Congress within 24 hours of deployment.
Unlike earlier proposals from congressional Democrats, this bipartisan one lacks a provision requiring judicial review for invoking the Insurrection Act. That’s defensible. Habeas corpus always remains as a remedy for people wrongfully arrested. Courts would likely already be able to consider challenges under the existing law. And the Supreme Court has previously decided that a president will receive significant deference when invoking the act. Opposition to a judicial review requirement, which some conservatives worry could hobble the executive during a legitimate emergency, should not prevent the other reforms from being enacted.
The Republican-controlled House is unlikely to take up a reform bill before the end of the year, but perhaps there’s an opening for bipartisanship. The best vehicle would be an amendment to the must-pass national defense reauthorization bill, as Sen. Richard Blumenthal (D-Conn.) and Rep. Jamie B. Raskin (DMd.) have discussed. It would be wise to modernize this law even if there were no chance of Trump’s election. Since there is a chance, it seems essential.