by The Insurrection Act is a dangerous, centuries-old federal statute that authorizes the president, with few restrictions, to deploy the U.S. military within the United States to suppress the president’s perceived threats to the constitutional order. The commentators have proposed toughen the law following reports that former President Donald Trump and his advisers plan to aggressively use it to enforce the law and quell domestic unrest if Trump is elected once again.
This focus on Trump is understandable, but inadequate to capture the compelling arguments for reform. It has been clear for decades that an outdated and poorly drafted law needs to be revised. In 2024 there is an opportunity to make targeted changes to the statute’s major flaws and, more importantly, in a way that both parties have good reason to support.
The Insurrection Act empowers the president to order armed forces and state militias into action within the United States and against American citizens in numerous ill-defined circumstances. The president may, for example, deploy military force when states request federal assistance to quell an “insurrection” or when the president “deems necessary” to enforce federal law against “obstructions,” “combinations,” or “assemblies” or to quell any “domestic violence” or “conspiracy” that impedes the enforcement of constitutional rights or even “the course of justice” under federal law.
The Insurrection Law has been invoked more than two dozen times in American history. Presidents have relied on it, for example, to respond to riots (as President George HW Bush did in 1992 in response to violent protests following the botched prosecution of police officers who beat Rodney King) and to confront to defy federal law (as Presidents John F. Kennedy and Dwight Eisenhower did to enforce court-ordered desegregation of public schools in Southern states).
The problem is that the law has very broad and vague triggers for its operation and has no temporal restrictions, and it does not specify any role for Congress to evaluate, shape or limit the president’s response to an emergency. In many ways it resembles the Electoral Count Act, which Congress revised by large bipartisan majorities in 2022 to govern the final counting of state electoral votes for presidents and vice presidents: a statute widely recognized as being poorly designed and clearly susceptible to malfeasance. harmful interpretations. and application, but it remained on the books for too long because the dangers it presented had not yet materialized.
The two main political parties in Congress supported the reform of the Electoral Count Law last year and now. seem to support broad reform of emergency power in other contexts. For the same general reasonsDemocrats and Republicans should want to deny any president unchecked authority to use the military in the country.
There is no serious doubt, on the substance, that the Insurrection Act gives any president too much unchecked power. It is difficult for anyone to argue that a president should be able to release American troops or state militias without any accountability beyond public opinion or impeachment.
Furthermore, the reform law does not give any inherent advantage to one party over the other. We now hear a lot about Trump’s possible use of troops at home, but in our polarized society it is easy to imagine that each party fears that a president affiliated with the other could use this tool for his political benefit, especially once a president feels a precedent by aggressively invoking it for this reason. In an era of rule-breaking, Congress should rein in this predictable tit-for-tat now.
Republicans should take special interest in reforming the Insurrection Act, despite the current focus on Trump. Many members of the Republican Party have been concerned about the potential politicization of the military, as well as the Pentagon’s recruiting and retention difficulties. As military leaders have done understood for a long timeFew things politicize the military more than its deployment for internal control.
Tightening the Insurrection Act would also check abuses of the statute to trample traditional state law enforcement prerogatives. The law gives presidents full license to denounce the military or militias if they unilaterally conclude that they must enforce state laws because the president determines that the states themselves “cannot, fail, or refuse” to do so.
The Insurrection Law reform has many potential moving parts. There are three vital elements.
First, Congress should tighten the factors that trigger presidential invocation of the law. It should eliminate vague and obsolete terms such as “assembly” and “combination”; clearly define other terms such as “insurrection” and “domestic violence”; and limit the president’s seemingly unlimited discretion to determine when the law’s triggers are met.
Second, it should require the president to consult with state and local authorities to ensure that troop deployment is necessary to address a serious security threat; formulate conclusions to this effect; and report to Congress and consult with it periodically.
Third, and perhaps most importantly, Congress should establish a relatively short sunset provision on a president’s invocation of the law (weeks, not months) subject to continued short-term additional deployments approved by Congress. This is where the issue comes to an end, as Congress may not approve of the president continuing to use the military.
But any threat that justifies using the military to enforce domestic law would have to be serious enough for congressional majorities to approve the action, and the dangers of presidential abuse in this case outweigh the dangers of congressional gridlock.
Amending the Insurrection Act along these three dimensions addresses the statute’s primary concerns without veering into more controversial issues that could make it difficult for the parties to find common ground. However, these simple changes would constitute historic reform and would be much better than no reform. The primary and urgent task is to subdue the core of the president’s promiscuous authority under the Insurrection Act.
Bob Bauer, Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, and Jack Goldsmith (@jacklgoldsmith), Harvard law professor, senior fellow at the Hoover Institution, and former deputy attorney general during the George W. Bush administration, are presidents of the Presidential reform project and the authors of “After Trump: Reconstructing the Presidency.”
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