Legal experts worry about presidential abuse of the Insurrection Act. Here's why

Carrie Johnson

March 28, 2024 / 3:57 am

caption: National Guard members take a staircase toward the U.S. Capitol building before a rehearsal for President-elect Joe Biden's Inauguration in Washington on Jan. 18, 2021. Experts in constitutional law and the military say the Insurrection Act gives presidents tremendous power with few restraints.

A bipartisan group of legal experts is sounding an alarm about presidential power this election season.

They're pushing Congress to update a cluster of laws known as the Insurrection Act and limit how the White House can deploy troops on American soil, in case a future president takes advantage of that sweeping power.

"It's really up to the president to decide when to use the armed forces as a domestic police force," said Elizabeth Goitein, senior director of the Liberty & National Security Program at the Brennan Center for Justice. "And that is tremendous cause for concern, because an army turned inward can very quickly become an instrument of tyranny."

The Insurrection Act, which predates the development of modern state and local police departments, gives the president the power to call on the military during an emergency to curb unrest or rebellion here at home.

The last time a president invoked the law was in 1992, when President George H.W. Bush used it to tamp down violence in Los Angeles after a jury acquitted police officers in the beating of motorist Rodney King.

But Goitein said most people remember the law for another moment in civil rights history, when President Dwight Eisenhower called up federal troops to enforce school desegregation in Little Rock, Ark.

More recently, it's been on the table after Hurricane Katrina devastated New Orleans and before the storming of the U.S. Capitol on Jan. 6, 2021.

Maryland Rep. Jamie Raskin, a Democrat, helped investigate the violence at the Capitol, and he says a central figure in the effort to help former President Donald Trump cling to power recognized the force of the Insurrection Act.

"Stewart Rhodes, who's been convicted of seditious conspiracy, which means conspiracy to overthrow or put down the government, was essentially calling on President Trump to use the Insurrection Act for the purposes of perpetrating an insurrection," Raskin said.

Rhodes wanted Trump to take advantage of old language in the law that mentions militias and to deploy his far-right Oath Keepers group to keep Trump in power. Trump never invoked that law, but some lawmakers and legal experts say the episode should serve as a warning.

"The general principle is that we don't live in a military dictatorship and we don't use the military for ordinary law enforcement purposes," Raskin added.

3 suggested changes to current law

Jack Goldsmith is a law professor at Harvard and a leader of the Presidential Reform Project. He said updating the Insurrection Act should be a bipartisan priority, since presidents of both parties could use it to politicize the military and infringe on states' rights.

"It's a huge blank check, it is easily subject to abuse, it's easy to imagine abuse," Goldsmith said.

Goldsmith's outlined three big changes he said should be made to the law.

First, Congress should narrow and clarify the language for when the president can use this sweeping power.

"[T]he statute as it's written has no limitations so it can be used in practically any situation where the president thinks it needs to be used," he said. "And that's just something that's very out of whack and needs to be fixed."

Next, Goldsmith said, the law should require a president to consult with state officials and with Congress.

Finally, and most important, he said, it's "absolutely vital" that Congress impose time limits on its use, putting lawmakers on notice to make a decision. Connecticut Sen. Richard Blumenthal, a Democrat, is floating a proposal that would give the president about a week for Congress to approve such a move or the military would need to be dispersed.

Blumenthal said he's talking with his Republican counterparts about the plan --and he said it's about more than Trump.

"My hope is that my colleagues in a very bipartisan way will recognize the need for safeguards and guard rails on a power that right now is unlimited, untrammeled and could be easily abused by any president, not one particular individual," Blumenthal said.

The old law is hovering over the current presidential campaign. The Washington Post has reported Trump might use the Insurrection Act to suppress protests or address crime in big cities if he's reelected.

And some Democrats have called on President Biden to use that authority to federalize the National Guard along the Southwest border amid clashes with Republican elected officials in Texas over the scope of state authority.