A bipartisan group of legal experts is calling for Congress to update a 200-year-old set of laws collectively known as the Insurrection Act. According to Jack Goldsmith, a law professor at Harvard who focuses on Presidential power, current laws are “easily subject to abuse.” Considering the violence that arose after the 2020 election, Goldsmith and others warn it could be easy for a President to abuse their authority if a similar situation occurs in 2024 or beyond. The use of military intervention domestically for a job usually handled by law enforcement is concerning to many.

The Act of Insurrecting

The Insurrection Act — really an amalgamation of statutes enacted by Congress between 1792 and 1871 — gives the president sweeping powers to call on the military to help handle emergencies, curb unrest, put down rebellions, and otherwise enforce the law in certain situations.

The Act empowers the president to call in the armed forces and the National Guard in certain semi-specific cases, including:

  • When requested by a state’s legislature or governor (if the legislature can’t be convened) to address an insurrection against that state.
  • Addressing an insurrection in any state which makes it difficult or impossible for state and local law enforcement to enforce the law.
  • To address an insurrection, domestic violence, unlawful combination, or conspiracy in any state which results in the deprivation of constitutionally secured rights and where the state is unable, fails, or refuses to protect said rights.

The Act seems fairly specific in its applications, and the Posse Comitatus Act should theoretically limit its use to those particular situations, but previous uses of the Insurrection Act raise some questions. Are the current laws sufficient to prevent an autocratic president from using the military as his police force?  

Previous Uses of the Act

The Act has been invoked several times since it was implemented. Previous presidents have called in the armed forces for good and … and not so good reasons, not all of which seem necessary or defensible by modern standards.

For instance, President Ulysses S. Grant invoked the Act on six separate occasions to deal with white supremacist uprisings, coups, and insurgencies in the aftermath of the Civil War. One of his predecessors, Andrew Jackson, once invoked the Act to put down a slave rebellion in 1831. Abraham Lincoln invoked the Act to deal with the southern states that attempted to secede from the Union some 30 years later.

Several presidents invoked the Insurrection Act in the 20th century. Woodrow Wilson and Warren G. Harding used the armed forces to put down strikes and labor rebellions. Franklin D. Roosevelt used it to stop a race riot. Dwight D. Eisenhower forced the Arkansas National Guard to allow black students to integrate into a school in Little Rock.

John F. Kennedy used the military to enforce integration and suppress rioting white supremacists who opposed integration. Lyndon B. Johnson turned around and used the military to shut down civil rights protests, marches, and riots protesting systemic racism. Ronald Reagan and George H. W. Bush used it to stop looting and riots, including the riots in Los Angeles after the acquittal of the officers who brutalized Rodney King.

The Act hasn’t been invoked since 1992, but two presidents have considered using it since then. President George W. Bush proposed calling in the military to intervene during the aftermath of Hurricane Katrina in 2006, but was ultimately dissuaded. The next proposed invocation didn’t come until June 2020, when former president Donald Trump warned that he would invoke the Act to put down the George Floyd protests before ultimately backing own. The same former president also refused to invoke the Insurrection Act to address the attempted insurrection on January 6, 2021.

Problems and Proposals

The current push to amend the Insurrection Act is rooted in the fear that a president with some combination of authoritarian leanings, vindictive tendencies, and general disdain for the law might use the Act to turn the military into his personal enforcers.

Some have recognized the need to put guardrails on the almost unfettered power granted by the Insurrection Act. Their proposals largely center around a few key changes to the Act.

  • First should come clarity. The Act is worded with enough ambiguity that a president could theoretically invoke it for practically any reason. Congress could reword the applicable statutes to include a more narrow definition of when the Act can and cannot be invoked.
  • The Act could be amended to include provisions requiring the president consult with and receive permission from state officials and Congress before sending the military to intervene.
  • Finally, Congress could put time limits on the Act. Congress would ideally have some time to discuss invoking the Act before making a decision, and the president wouldn’t be able to deploy the military indefinitely. The invocation and continuing use of the Act should be an ongoing conversation between the two co-equal branches of government rather than a blank check to let the president use the military against American citizens for however long he chooses.

The elephant in the room with calls for reform is, of course, former President Donald Trump and the events of January 6, 2021. According to a survey by PRRI and the Brookings Institute, 38% of Americans in 2023 agreed that “Because things have gotten so far off track in this country, we need a leader who is willing to break some rules if that’s what it takes to set things right.” The same study found that 75% of Americans believe democracy in this country is at risk. After the first non-peaceful transfer of power in our country’s history, if 2024 results in another closely contested election and protests and violence occur, will the newly elected president use military force? As of now, in theory, either man could.

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