Convened at the invitation of The American Law Institute, the group is comprised of individuals with backgrounds in constitutional law, national security law, military law, and who have held senior positions in federal government. “The Insurrection Act is a centuries-old federal statute that authorizes the president to deploy the armed forces and state militias into action within the United States to address rebellion against the federal or state governments, major outbreaks of domestic violence, and the imminent or actual collapse of law enforcement,” Bob Bauer, NYU School of Law and former White House Counsel to President Barack Obama, said in a joint statement about the effort. “It is poorly drafted, replete with vague or obsolete language, and it has been clear for decades that this antiquated law needs serious revision.” Bauer, who is President Joe Biden’s personal lawyer and was the architect of Biden’s strategy in the handling of his classified documents case, is co-leading the group with Jack Goldsmith, Harvard Law School and former Assistant Attorney General in the George W. Bush administration. “There is agreement on both sides of the aisle that the Insurrection Act gives any president too much unchecked power,” Goldsmith said in the statement. “The Principles for Insurrection Act Reform proposes a set of core standards to guide constitutionally sound, bipartisan reform that aims to address the Act’s flaws while reflecting the need for U.S. armed forces to remain available in extreme cases to respond to domestic threats. These Principles are neutral in design and apply to any president’s invocation of the Insurrection Act.” Originally enacted in 1792, the Insurrection Act “needs a major overhaul,” according to the Brennan Center. “While there are rare circumstances in which such authority might be necessary, the law, which has not been meaningfully updated in over 150 years, is dangerously overbroad and ripe for abuse.” While advocates at groups like the Brennan Center detail problematic language in the Act — including nothing in the law’s text defining “insurrection,” “rebellion,” or “domestic violence” — the U.S. Supreme Court has already ruled that the authority to decide whether an emergency requiring domestic military involvement has arisen “belongs exclusively to the President, and that his decision is conclusive upon all other persons.” Still, the group says that additional guardrails are needed because the law fails to address specifics like consultation and reporting requirements, as well as time limits on the domestic deployment of armed forces. The last time the Insurrection Act was invoked was in 1992, when President George H. W. Bush used it to quell five days of riots in Los Angeles after a jury acquitted four police officers in the beating of Rodney King. Former President Donald Trump threatened to deploy military forces during the summer of 2020 when violent protests raged across much of the U.S. in the wake of the killing of George Floyd. “If a city or a state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them,” Trump said at the time. Amid growing concerns that the law in its current form could be abused by Trump should he win re-election, the policy document proposes language clarifying the scope of presidential authority, deleting antiquated terms that have disputed contemporary meaning, and making clear that a president may not deploy the U.S. military domestically unless “violence [is] such that it overwhelms the capacity of federal, state, and local authorities to protect public safety and security.” As stated in the group’s policy proposal, a reformed Insurrection Act should:A bipartisan team of former federal government officials are asking the U.S. Congress to reform the Insurrection Act to revise language permitting a President of the United States to deploy U.S. military troops domestically.
The group “unanimously agrees that Congress should reform the Insurrection Act as soon as possible and proposes the following principles in an effort to contribute to a constitutionally sound bipartisan consensus in Congress,” the policy document states.
