How to Fix the Insurrection Act
Read our op-ed in The New York Times by Bob Bauer and Jack Goldsmith: “Trump Is Not the Only Reason to Fix This Uniquely Dangerous Law.”
In it, Bob and Jack write:
The Insurrection Act is a dangerous, centuries-old federal statute that authorizes the president, with few restraints, to deploy the U.S. military inside the United States to suppress threats the president perceives to the constitutional order. […]
The Insurrection Act empowers the president to order the armed forces and state militias into action within the United States and against American citizens in numerous ill-defined circumstances. […]
The problem is that the act has very broad and imprecise triggers to its operation and no temporal constraints, and it does not specify any role for Congress to assess, shape or limit the president’s response to an emergency. […]
First, Congress should tighten the triggers for presidential invocation of the act. It should eliminate vague and obsolete terms like “assemblage” and “combination”; clearly define other terms like “insurrection” and “domestic violence”; and narrow the president’s seemingly boundless discretion to determine when the act’s triggers are satisfied.
Second, it should require the president to consult with state and local authorities to ensure that troop deployment is needed to address a serious threat to safety; to make findings to that effect; and to report to and consult with Congress on a regular basis.
Third, and perhaps most important, Congress should place a relatively short sunset provision on a president’s invocation of the act — weeks, not months — subject to additional short-term continued deployments approved by Congress. This is where the rubber meets the road, since Congress might not approve the president’s continued use of the military.