The Biden administration is quietly seeking to reform a 19th century law known as the Insurrection Act amid rising fears of domestic unrest before and during the 2024 election.
The Insurrection Act, passed in 1807 and amended during the Civil War and in its immediate aftermath, suddenly became a talking point amid media claims that former President Donald Trump mulled invoking it to quell mass rioting that swept the nation in the aftermath of George Floyd’s death during a resisted arrest in 2020.
There were also opposition media concerns that Trump would invoke it during the contested 2020 election, because he might federalize the National Guard and call on the military to help lead what critics referred to as an “insurrection” on January 6, 2021.
The Insurrection Act authorizes the president to deploy U.S. military and federalize the National Guard to suppress domestic unrest.
On Monday, a bipartisan group called by the American Law Institute and led by former Obama White House Counsel Bob Bauer and former George W. Bush administration Assistant Attorney General Jack Goldsmith released a set of “Principles for Insurrection Act Reform.”
The panel of legal experts recommended changes to the federal law that allows the president to deploy troops on U.S. soil “in cases of insurrections.”
The principles propose that the Insurrection Act be revised to clarify that the president cannot deploy military troops until “the violence [is] such that it overwhelms the capacity of federal, state, and local authorities to protect public safety and security.”
It also recommends Congress to enact reporting and consultation procedures, as well as time limits, for presidential deployments under the act, such as:
- Requiring the president to report to Congress, within 24 hours of deployment, on the need to invoke the Insurrection Act and on consultations held with state authorities.
- Limiting the president’s authority to deploy troops under the act to a maximum of 30 days absent renewed congressional authorization.
- Establishing a fast-track procedure for Congress to vote on renewal of presidential authority under the act.
Prior contact with the governor is required before sending soldiers into any state.
The Brookings Institute in 2022 posted a lengthy critique of the Insurrection Act and why it poses a threat to Americans.
The Insurrection Act needs a major overhaul. Originally enacted in 1792, the law grants the president the authority to deploy the U.S. military domestically and use it against Americans under certain conditions. While there are rare circumstances in which such authority might be necessary, the law, which has not been meaningfully updated in over 150 years, is dangerously overbroad and ripe for abuse.
The left-wing think tank defines the authority of the Insurrection Act in a time of “crisis.”
Invoking the Insurrection Act temporarily suspends the Posse Comitatus rule and allows the president to deploy the military to assist civilian authorities with law enforcement. That might involve soldiers doing anything from enforcing a federal court order to suppressing an uprising against the government. Of course, not every domestic use of the military involves law enforcement activity. Other laws, such as the Stafford Act, allow the military to be used to respond to natural disasters, public health crises, and other similar events without waiving the restrictions of the Posse Comitatus Act.
In theory, the Insurrection Act should be used only in a crisis that is truly beyond the capacity of civilian authorities to manage. However, the Insurrection Act fails to adequately define or limit when it may be used and instead gives the president significant power to decide when and where to deploy U.S. military forces domestically.
The think tank states that “Section 251 allows the president to deploy troops if a state’s legislature (or governor if the legislature is unavailable) requests federal aid to suppress an insurrection in that state. This provision is the oldest part of the law, and the one that has most often been invoked.”
And there is also Section 252, which permits deployment in order to “enforce the laws” of the United States or to “suppress rebellion” whenever “unlawful obstructions, combinations, or assemblages, or rebellion” make it “impracticable” to enforce federal law in that state by the “ordinary course of judicial proceedings.”
There is additionally a Section 253, which allows the president to use the military in a state to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” that “so hinders the execution of the laws” that part of the state’s inhabitants are deprived of a constitutional right and state authorities are unable or unwilling to protect that right.
Section 253 also permits the president to deploy troops to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” in a state that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.”
“This provision is so bafflingly broad that it cannot possibly mean what it says, or else it authorizes the president to use the military against any two people conspiring to break federal law,” Brookings notes.
The American Law Institute in a press release explained why there is a pressing need to reform the law.
“Revising the Insurrection Act in these respects will address the major concerns with the statute,” Goldsmith said in a news release by The American Law Institute. “The principles suggest specific, common-sense reforms and are designed to allow members of both parties to find common ground. At the same time, these modest and reasonable changes would be historic — providing necessary checks and balances where none currently exist before they are ever needed.”
“There is agreement on both sides of the aisle that the Insurrection Act gives any president too much unchecked power,” he added. “The Principles for Insurrection Act Reform proposes a set of core standards to guide constitutionally sound, bipartisan reform that aims to address the Act’s flaws while reflecting the need for U.S. armed forces to remain available in extreme cases to respond to domestic threats.”
National Security Council legal adviser John Eisenberg, who served in the Trump administration, also explained why reforming the act is crucial.
“This is something of great importance regardless of what party you are in because, obviously, it is an area that can be abused,” Eisenberg said. “If the triggers, for example, are too vague, the risk is that it can be used in circumstances that do not really warrant it. So, it is important to tighten up the language to reduce that risk.”
