The United States has seen widespread protests against police brutality and systemic racism in recent weeks, triggered by the brutal murders of George Floyd, Breonna Taylor, and Ahmaud Arbery. Despite the largely peaceful nature of the protests and having no real justification, President Donald Trump threatened to invoke the Insurrection Act to use the military to restore so-called law and order on America’s streets. While Trump ultimately did not invoke the act, these events have underscored that the Insurrection Act of 1807 needs to be substantially amended to put in place appropriate checks on abuse of presidential authority over the active-duty military and federalized National Guard for law enforcement purposes. Congress should consider how best to amend the act with more checks and balances so that it cannot be used for undemocratic purposes.
An arcane but extraordinary authority
The Insurrection Act is a statutory exception to the Posse Comitatus Act that allows the use of military and federalized National Guard to support law enforcement officers when they are overwhelmed or to quell an uprising; the use of the military for domestic law enforcement is otherwise prohibited under Posse Comitatus. Presidents have used this arcane but extraordinary authority sparingly in recent decades. Yet it is clear now that norms with respect to its modern use rely too heavily on the character and whims of the incumbent in the Oval Office—regardless of political party.
The Insurrection Act gives the president authority to use active-duty and federalized National Guard regardless of the consent of governors and local officials if the president believes that the law cannot be upheld in circumstances of domestic unrest, rebellion, or insurrection. The act is surprisingly vague and places few constraints on presidential authority over when and how it can be used. Its use over the course of American history has varied under different circumstances and leaders, from helping enforce desegregation in the 1950s to quelling the Rodney King riots in Los Angeles in 1992—its last use, undertaken at the request of the California governor.
Yet because the act invests full authority in the president to determine that circumstances warrant its use with no legislative, judicial, or even executive branch checks and over the heads of state governors, it can be used for undemocratic and even unconstitutional purposes. And of course, the president, not the mayor of Washington, D.C., already has direct authority over the District of Columbia National Guard—an authority that is currently delegated to the secretary of the Army. The fact that the D.C. National Guard was deployed in these circumstances already generated tremendous backlash from Washington residents and the mayor during last week’s largely peaceful protests. But the act could also be even further abused by a president to forcibly deport or detain undocumented immigrants, intimidate voters at polling sites under the guise of rule of law, and of course, to quell peaceful protestors seeking to exercise their constitutional rights.
How Congress can amend the Insurrection Act
This kind of ambiguity subjects the U.S. military and National Guard solely to the whims of the commander in chief, who may or may not show affinity for the norms and traditions that govern civil-military relations. The institution of the U.S. military is one of the most trusted in the country because—not in spite—of these important norms. While the National Guard has historically performed important functions in supporting civil authorities and ensuring rule of law at the requests of governors, it deserves better checks against possible abuse. And of course, the use of active-duty regular forces is even more charged. They are not trained for law enforcement and policing operations and are poorly suited for them, especially against their fellow citizens.
To reduce the possibility of political abuse of the Insurrection Act for undemocratic purposes, Congress should consider the following four options to amend it:
- Require congressional notification and authorization. Congress could amend the act to require congressional notification and affirmative authorization within a reasonable but short time frame. The War Powers Act of 1973 requires the president to notify Congress within 48 hours of introduction of U.S. armed forces into hostilities overseas and limits their deployment to 60 days unless further authorized by Congress. Similar restraints should be placed on the president for use of the military at home for law enforcement purposes, although the period for the president to act without authorization from Congress should be shorter in order to reflect the different nature of the military’s use inside the American homeland.
- Impose executive branch checks, including certification by the attorney general and/or the secretary of defense that conditions necessitate its use. This would take the determination of these conditions out of solely the president’s hands and invest the Department of Justice and the Department of Defense in its use. It would also provide further congressional oversight opportunities from committees of relevant jurisdiction.
- Add a judicial branch check and expedited review. There is no requirement in law for a president to get a court finding to invoke the Insurrection Act over the heads of governors. This could be especially relevant if the president were to invoke the act to allow the military or federalized National Guard to conduct surveillance on American citizens. Similar to requirements under the Foreign Intelligence Surveillance Act, Congress could amend the Insurrection Act to require explicit judicial ruling for any surveillance activities conducted under it. The act could also be amended to allow for expedited judicial review of whether the conditions cited by the executive branch are sufficient to authorize invocation of the act.
- Explicitly prohibit invocation against peaceful assembly. Congress could add a provision to the statute that would explicitly prohibit any president from using the armed forces to put down peaceful protests or violate civil rights. This would make the act much clearer with respect to what is and is not considered insurgency, rebellion or insurrection and put a check on a president’s ability to use the U.S. military to violate the civil right of Americans to peacefully assemble.
The events of recent weeks have underscored the importance of placing checks on broad presidential authorities with respect to the U.S. military, whether at home or abroad. While the president did not invoke the Insurrection Act last week, and invocation faced serious pushback even within the administration, such action could be revisited in the weeks and months ahead under far more combustible conditions. It is time for Congress to take action before it’s too late.
Kelly Magsamen is the vice president for National Security and International Policy at the Center for American Progress.