When Congress last overhauled the Insurrection Act, we were a very different country. Less than a decade had passed since the Civil War. Federal troops were garrisoned in former Confederate states, and insurrectionists remained a threat. The White League, the Knights of the White Camelia, and, most infamously, the Ku Klux Klan terrorized communities. Law enforcement was rudimentary, and some major U.S. cities still lacked a formal police force.
It was during this period — the unruly, violent, seditious 19th century — that Congress handed the president vast powers to deploy the military to enforce federal law. The president no longer needed judicial approval for such deployments, and there was no limit on how long the deployment could last. Indeed, the president wasn’t even restricted to using U.S. troops to enforce the law. He could use “any other means.” (One wonders what, exactly, Congress had in mind.)
Times have changed, but the Insurrection Act hasn’t. There are still dangerously few checks on the president’s emergency powers. As my colleagues Liza Goitein and Joseph Nunn argue in their written statement submitted today to the House January 6 committee, it’s past time to reform the Insurrection Act.
Donald Trump considered invoking the Insurrection Act on two occasions. In a June 2020 statement from the White House, Trump threatened to “deploy the United States military and quickly solve the problem” of violent protests. Then, in the weeks following the 2020 election, Trump allies urged him to invoke the Insurrection Act. Rep. Marjorie Taylor Greene (R-GA), for example, told the White House chief of staff that perhaps “the only way to save our Republic is for Trump to call for Marshall [sic] law.”
Under the Insurrection Act, as currently written, Trump could very likely have prevented Congress from meeting to certify his defeat. He could have done worse. Indeed, his supporters in white nationalist groups hoped the Insurrection Act could convert them into Trump’s personal military force. Given how far he went to subvert the rule of law in January 2021, it’s almost surprising that Trump didn’t invoke the Insurrection Act.
The trick in reforming the Insurrection Act is to maintain executive flexibility when military force is truly justified, while preventing abuses like those contemplated by Trump.
First and foremost, Congress must specifically define what circumstances permit the president to invoke it. A true insurrection against the federal or state governments clearly justifies the use of the act. Obstruction of federal law should too, but only when it deprives a group or class of people of their constitutional rights or creates an immediate threat to public safety. As a reference point, both Presidents Dwight D. Eisenhower and John F. Kennedy used the Insurrection Act to overcome resistance to school desegregation.
While invoking the Insurrection Act necessarily expands the president’s powers, it should not render him quasi-omnipotent. The reformed law should prevent the president from suspending habeas corpus or allowing the military to entirely displace civilian authority.
Since even this more restrained version of the Insurrection Act still conveys significant power, there must be robust checks. The president, secretary of state, and attorney general should jointly communicate to Congress the conditions that justify invoking the it. After seven days, the authority should expire without congressional authorization. And the availability of judicial review is a must.
Justice Robert Jackson once described the Korematsu decision, in which the Supreme Court allowed the president expansive emergency powers with inadequate oversight, as “a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” He could have said something similar about the Insurrection Act. This moment is an opportunity for meaningful reform.