Why we need to fix the Insurrection Act ASAP

When Senator Tommy Tuberville (who just took Putin’s side on the Ukraine invasion) was meeting with the Trump family and team the night of January 5th in the DC Trump Hotel, plans had already been laid for the Proud Boys and other fascist street gangs to seize control of the Capitol to prevent the certification of Joe Biden’s 7-million-vote victory.

The key would be invoking the Insurrection Act, a basket of laws dating from 1792 to 1874 that’s been used a bit over two dozen times, the first by George Washington and the most recent by President George HW Bush in response to the riots that erupted around the police beating of Rodney King.

The Act gives the president wide latitude to decide what is and isn’t an insurrection, and how to respond to one.

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There is virtually no congressional or judicial oversight: this act is the single most powerful weapon a rogue president can use to execute a coup and seize complete control of the nation.

An insurrection, under the Act, is whatever the president says it is. It authorizes the president to put down any “unlawful combination” or “conspiracy” that “opposes or obstructs the execution of the laws of the United States.”

Trump could claim that even the smallest public demonstration against his policies that blocks traffic in the most obscure town is an insurrection and use that to put our entire country under military control.

Trump also doesn’t need to use the US military: the Act says he may put down an insurrection “by using the militia or the armed forces, or both, or by any other means,” which is particularly problematic as Congress has also defined a militia as “all able-bodied males at least 17 years of age and … under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States…”

The law defining the militia, 10 US Code § 246, could thus include groups like the Proud Boys under a Trump interpretation. It was last updated in 1956 and references “the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.” Unofficial militias like the Proud Boys, in other words, that the president can call on.

If this tickles your memory from high school history class, it should: both Hitler, Pinochet, and Mussolini rose to power with volunteer “unorganized militias” (including the Brownshirts and Blackshirts) that were given full legal authority once their leaders seized control of the government.

During the January 6th attack on our Capitol, the militia members engaging in that armed attack were, the record shows, glued to Trump’s Twitter feed, anxiously awaiting Trump’s proclamation of the Insurrection Act and instant deputization of them.

Although reports vary, apparently some believed they’d be deputized and asked by Trump to hold the Capitol right up to and through inauguration day, January 20th, to prevent Joe Biden from being sworn into office.

It was an entirely possible scenario. Trump already had his Insurrection Act proclamation written and ready to go: his only problem was that he needed cooperation from Attorney General William Barr, Secretary of Defense Mark Esper, and Chairman of the Joint Chiefs Gen. Mark Milley to implement it — and all refused to go along with him.

Next time he won’t be surrounded by men who respect our nation’s traditions and principles, which is why he’s promising to use the Act to “be a dictator” on his first day in office.

He’s already told us he’s going to use the Act to go after immigrants, Democrats, and people who’ve criticized him in the press, and that he’s planning to build concentration camps to house these “millions” of his “enemies.”

And the Insurrection Act says he can do it all “by any means” at his disposal, including deputizing fascist street gangs. Kent State meets Night of the Long Knives.

Which is why Congress needs to fix the Insurrection Act right now.

This may not be as difficult as it seems: there are many Republicans who are as concerned about the Act as are most all Democrats. Utah Senator Mike Lee, for example, introduced an amendment to the National Defense Authorization Act in 2021 that would have made major reforms to the Insurrection Act.

His amendment, restated later in the year in a standalone bill co-sponsored by Bernie Sanders and Chris Murphy, would time-limit presidential proclamations of insurrection to 30 days unless Congress approved an extension, and even then that extension could only last a year.

In addition to time-limiting a president’s powers to declare an insurrection and invoke the Act, it should also be reformed to clearly define what is an insurrection that would justify mobilizing or deputizing a militia or the military on US soil. Right now the law uses vague terms like “combination” and “assemblage” that are both obsolete and subject to wide interpretation.

And, Congress needs to tighten up the definition of a militia.

Donald Trump, Tommy Tuberville, and MAGA Putin-loving fascists like them are a clear and present threat to our republic. Removing, or at least restricting, the most powerful weapon they can use against America — which Trump’s already proclaimed his intention to invoke should he win — is the very least we can do to Trump-proof our nation.

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