How to Fix the Insurrection Act

The January 6 committee hearings painted a vivid picture of how our democracy has been under attack. A particularly startling revelation was that white supremacist groups like the Oath Keepers and Proud Boys were “standing by” – as Donald Trump had demanded months earlier – awaiting Trump’s orders to take up arms. They hung on Trump’s Twitter feed as they stormed the Capitol, believing that invoking the Insurrection Act would authorize them to serve as his personal army.

Strange as that may seem, it’s not clear that they were wrong. And that’s just one of the reasons why Congress should reform this outdated and dangerous law. On Tuesday, the Brennan Center delivered a statement to the committee presenting a proposal to do so.

The Insurrection Act – a body of laws passed between 1792 and 1874 – is arguably the most important of the president’s emergency statutory powers. It authorizes the President to deploy US forces domestically and use them to quell civil unrest or enforce law in a crisis. As such, it is an exception to the Posse Comitatus Act, the statute that generally prohibits federal military personnel from participating in civilian law enforcement.

The use of the military as a domestic police force represents a sharp departure from core constitutional values. The drafters understood that military interference in civilian affairs threatens democracy and individual liberties, and they were careful to subordinate the military to civilian authorities. But they also recognized that a real crisis might require military intervention. They left it to Congress to find a reasonable balance between these competing considerations.

The Insurrection Act fails utterly in this task. Its text is vague and overly broad, giving the President almost unlimited discretion to deploy troops for domestic law enforcement. For example, one of its provisions allows use to suppress any “unlawful combination” or “conspiracy” that “opposes or impedes the enforcement of the laws of the United States.” Literally, this would allow the President to deploy the 82nd Airborne in response to two individuals conspiring to intimidate a witness at a federal trial. A more realistic (and worrying) abuse scenario would involve using troops to quell an illicit but peaceful protest against a controversial executive order like Trump’s Muslim ban.

In such cases, the Insurrection Act allows the President to respond “by using the militia or the armed forces, or both, or in any other way(Emphasis added). This alarming delegation of unlimited power explains why the Oath Keepers and similar groups pinned their hopes on this bill. Congress has defined “militia” as including “any able-bodied male at least 17 years of age and … Under the age of 45 that are the citizens of the United States or have given a declaration of intent to become citizens of the United States, and female citizens of the United States who are members of the National Guard. ”A considerable part of the members of white racist organizations would probably be correspond to this definition and theoretically the others could be mobilized under the language of “other means”.

Despite this extraordinary empowerment, the Insurrection Act, as it stands, contains virtually no abuse controls. Previous versions of the law required prior court approval and set time limits for deploying troops to enforce the law absent congressional approval. But Congress scrapped those provisions, leaving no role to the other branches of government. The Supreme Court has ruled that the law gives the President full discretion in deciding whether a deployment is warranted.

Such a broad and unrestricted delegation of powers has been dangerous at any time in our nation’s history. In modern times it is also completely unjustified. Most of the provisions of the law were developed for the civil war and ensuing terrorist insurgency in the former Confederacy. These threats were long ago wiped out, but the forces created to counter them have remained virtually unchanged for 150 years. Additionally, when the law was written, police departments were in their infancy and federal law enforcement was all but non-existent. Many situations that might have required the assistance of the military in the 18th and 19th centuries would be handled well by today’s law enforcement agencies. In short, nothing about the Insurrection Act is tailored to the needs of the United States in 2022.

This is not to say that military intervention in domestic crises is never appropriate. For example, in the late 1950s and early 1960s, Presidents Dwight D. Eisenhower and John F. Kennedy both invoked the Insurrection Act to enforce federal court orders to desegregate schools in the South. However, other presidents have used the law to break up strikes and suppress labor movements. And in the weeks leading up to Jan. 6, Trump’s allies urged him to invoke the Insurrection Act as part of a strategy to overturn the election results. In fact, it would have been shockingly easy for Trump to invoke the Congressional Shutdown Act on Jan. 6 to delay or prevent confirmation of the vote on the pretext of keeping the peace.

The potential for abuse is clear. What is needed is legislative reform that effectively prevents such abuse while preserving the ability to deploy troops in a real crisis – including a possible future insurgency against an incumbent president where the president is genuinely trying to preserve democracy. The Brennan Center’s proposal, developed in consultation with numerous experts and several allied organizations, would achieve this goal.

First, the proposal defines more precisely and narrowly both the criteria for deployment and what the President can do in response. For example, while an insurrection against federal or state government would always justify deployment, an obstruction of federal law would trigger deployment authority only if it deprives a group or class of people of their constitutional rights — expressly including the right to vote — or creates an immediate one A public safety threat that state or federal law enforcement agencies have been unable to address. In response to such crises, the President could deploy active-duty military forces or call the National Guard into federal service, but he could not delegate private individuals to serve as soldiers. In addition, the proposal would clarify that the insurrectionary law does not allow the suspension of habeas corpus — the detention of people without trial — or the complete removal of civil authority, also known as “martial law.”

To ensure compliance with these restrictions, the proposal includes mechanisms for congressional and judicial oversight. At the time of deployment, the President, Secretary of Defense and Attorney General would have to submit a joint certificate and submit a report to Congress containing certain basic information. The statutory authority expires automatically after seven days unless Congress authorizes expedited procedures that would prohibit filibustering and allow any member to force a vote. Finally, the courts would be empowered to review whether the criteria for deployment are met, applying a deferential “substantive evidence” review standard to ensure the courts do not simply substitute their own for the president’s verdict.

These reforms are crucial to protecting our democracy. They would ensure that a president who needs to use federal troops to quell an insurgency has sufficient powers, while a would-be autocrat wishing to stage an insurgency cannot exploit the law for that purpose. If the Jan. 6 committee plans to make policy recommendations, reform of the Insurrection Act, as proposed by the Brennan Center, should be among them.