Congress needs to fix a 'dangerous, centuries-old federal statute' before it gets abused: legal experts

27 December 2023

2024 GOP presidential frontrunner Donald Trump, according to the Washington Post, plans to invoke the Insurrection Act on his first day in office if he wins the 2024 election and there are large protests — a proposal that Trump's critics have been slamming as dangerously authoritarian.

The Posse Comitatus Act of 1878, passed by Congress and signed into law by President Rutherford B. Hayes (a former Whig turned Republican), limits the use of the U.S. military for law enforcement within the United States. But the Insurrection Act of 1807 remains an exception to the 1878 law.

In an essay/op-ed published by the New York Times on December 27, legal scholars Bob Bauer and Jack Goldsmith warn that the Insurrection Act needs to be reformed before it abused — and not just because of Trump.

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"The Insurrection Act is a dangerous centuries-old federal statute that authorizes the president, with few restraints, to deploy the U.S. military inside the United States to suppress threats the president perceives to the constitutional order," Bauer and Goldsmith explain. "Commentators have recently proposed tightening the law following reports that former President Donald Trump and his advisers are planning to use it aggressively for law enforcement and to quell domestic disturbances if Mr. Trump is once more elected. This focus on Trump is understandable but inadequate in capturing the compelling case for reform."

The legal experts add, "It has been clear for decades that the poorly drafted and antiquated law needs revision."

Bauer and Goldsmith are co-chairs of the Presidential Reform Project and authors of the 2020 book "After Trump: Reconstructing the Presidency." While Bauer is a scholar at New York University, Goldsmith is a conservative Harvard Law School professor who served as assistant U.S. attorney general under President George W. Bush.

According to Bauer and Goldsmith, the Insurrection Act "empowers the president to order the armed forces and state militias into action within the United States and against American citizens in numerous ill-defined circumstances."

Bauer and Goldsmith note, "The president can, for example, deploy military force where states call upon federal assistance in quelling an 'insurrection'; or as the president 'considers necessary' to enforce federal law against 'obstructions,' 'combinations' or 'assemblages'; or alternatively, to quell any 'domestic violence' or 'conspiracy' that impedes the enforcement of constitutional rights or even 'the course of justice' under federal law…. The problem is that the act has very broad and imprecise triggers to its operation and no temporal constraints, and it does not specify any role for Congress to assess, shape or limit the president’s response to an emergency."

Bob Bauer and Jack Goldsmith's full New York Times essay/op-ed is available at this link (subscription required).

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