Media Mention

Washington Post: There’s still time for Congress to fix the Insurrection Act

May 5, 2024

In a new editorial, The Washington Post‘s editorial board called the Insurrection Act “a dormant law [that] is a ticking timebomb ripe for abuse.” But, it argues, “there are easy fixes that can be bipartisan,” including those articulated in the American Law Institute’s Guidance for Insurrection Act Reform:

A bipartisan group of former top government lawyers recently unveiled a thoughtful set of principles to reform the Insurrection Act. They’re careful to say that it’s not about Mr. Trump and that both parties should want to preempt potential tyranny by the opposition. That makes sense. After all, some on the left urged President Biden to invoke the Insurrection Act this year to take over the Texas National Guard during a dispute about enforcing immigration laws.

Convened by the nonpartisan American Law Institute, the working group was led by Harvard Law professor Jack Goldsmith, who ran the Office of Legal Counsel under President George W. Bush, and New York University law professor Bob Bauer, who is Mr. Biden’s personal lawyer (this work is unrelated to that role) and a former White House counsel for President Barack Obama. They previously partnered to clean up the Electoral Count Act after its weaknesses were highlighted on Jan. 6, 2021.

They propose clarifying that no president can deploy the military under the Insurrection Act unless there’s violence that “overwhelms the capacity of federal, state, and local authorities to protect public safety and security.” They would limit troop deployments to 30 days without additional congressional authorization, establish a procedure to fast-track such votes, require prior consultation with state governors, and compel a presidential report to Congress within 24 hours of deployment.

Read the editorial here.