This article first appeared on Slate.
As recent reports have revealed, former President Donald Trump and his allies are increasingly concerned about how the second Trump administration will use federal power to punish Trump’s critics and political opponents. I’m making plans for something. Among other things, President Trump reportedly intends to quell public protests against him by invoking the Insurrection Act (a law that gives the president nearly unlimited powers to use the military as domestic police) on his first day in office. .
No one can stop him unless Congress acts now to reform this dangerous and outdated law.
Federal forces are generally prohibited from enforcing civil law under the Civil Police Law. This prohibition reflects a tradition of American law and political thought that views military introversion as an inherent threat to democracy and individual freedom. However, the Civil Police Law is not an absolute rule. This allows federal troops to participate in law enforcement when explicitly authorized by Congress.
The Insurrection Act gives that power. The intent behind this law is for the president to use the military to assist in the event of an insurrection, insurrection, or other civil disturbance that overwhelms civilian authorities, or where state and local governments are unable or unwilling to enforce. to enforce civil rights laws. ” Don’t force them. In such cases, a narrow exception to the general rule against using military force for law enforcement makes sense. The problem is that the Insurrection Act is not a limited exception to the Posse Police Act, but rather creates a huge loophole in the Posse Police Act.
The main flaw with the Insurrection Act is that it gives the president virtually unlimited discretionary power. Its vague and archaic language (first enacted in his 1792 and last updated in 1874) means little about under what circumstances deployment is or is not necessary. does not provide certain guidelines. For example, one provision authorizes the president to use the military or “any other means” to “take such measures as he deems necessary” to suppress “unlawful combinations.”[] “Conspiracy” to “oppose or obstruct the enforcement of the laws of the United States, or to obstruct the course of justice pursuant to those laws.” Read literally, this would allow the president to send in Marines to arrest and detain two people on charges of conspiring to intimidate witnesses in a federal trial, for example.
Compounding the problem, the Supreme Court ruled in 1827 that only the president could decide whether invoking the Insurrection Act was legitimate. The court cannot review or second-guess its decision. As for Congress, if it objects to the president’s use of this law, its only recourse is to pass legislation to end the deployment. The president would likely refuse to sign such legislation, in which case Congress would need to muster a two-thirds supermajority to override the president’s veto.
These deficiencies stem primarily from Congress’ failure to update the Insurrection Act to meet the nation’s changing needs. Certain provisions remain largely the same as they were when Congress passed his first version of the Insurrection Act in 1792, but they are no exceptions to the original law that allowed courts and Congress to check the president’s powers. The difference is that the safeguards were removed long ago.
The broadest provisions of the Insurrection Act, including a clause that authorizes the president to use military force or “other means” to suppress acts believed to violate federal law, are the basis of the Civil War and the whites that ravaged the former It was added in direct response to the supremacist terrorist insurgency. Union during Reconstruction. These provisions were designed for the 19th century.th This was a time when the country was at war, modern law enforcement was in its infancy, and even relatively minor disturbances could be beyond the capabilities of civilian authorities alone. Nearly 150 years later, change is long overdue.
The law’s anachronisms make it ripe for abuse. During the Civil Rights Movement, presidents appropriately invoked the Insurrection Act to force desegregation in the South over local and state opposition. But some presidents have also used the system to suppress labor movements and quell so-called “race riots,” which were often caused by state violence against people of color.
As president, Trump reportedly expressed strong interest in using the Insurrection Act to crack down on Black Lives Matter protesters in the summer of 2020. Even more ominously, several of Trump’s allies have urged him to invoke the Insurrection Act to remain in power after losing the 2020 presidential election. Presidential election.
The Brennan Center proposes reforms to prevent abuse of the Insurrection Act. These include clarifying and narrowing standards for military deployment, specifying what actions are and are not allowed when the law is invoked, and providing both Congress and the courts with checks on abuse and overreach. It includes giving authority. The key is to maintain the president’s flexibility to respond quickly and decisively to genuine crises that civilian authorities cannot address. In other words, rather than handing the president a blank check, he would modify the language of the law to reflect its underlying intent.
Congress should take up these or similar reforms without delay. Our nation faces the emergence of a president who is willing to use the U.S. military as his own domestic police force. The danger this poses to democracy cannot be overstated, but it can and must be avoided.
