Don’t Put an Insurrectionist in Charge of the Insurrection Act
And amend the law to prevent its abuse.
DONALD TRUMP’S ALLIES have reportedly been laying the groundwork for him, if returned to the presidency, to use the U.S. military against domestic demonstrators—exploiting the Insurrection Act, a deeply flawed old law that has been lying around like a loaded gun waiting to be picked up by a would-be tyrant.
An in-depth report in the New York Times on Saturday digs into Trump’s longstanding desire to deploy the military on American soil and the cadre of legal and policy advisers working to justify such an order. As the Times blandly states, “that would carry profound implications for civil liberties and for the traditional constraints on federal power.”
Let’s not mince words: What’s at stake is whether we are going to have a country ruled by military force whenever a president chooses to use it. Whether our freedom will be suppressed at the point of a gun or uplifted by our votes and our voices.
Originally enacted in 1807 and last amended in 1871, the Insurrection Act is vaguely worded, allowing presidents to send the army or the national guard into a state “whenever the President considers that unlawful obstructions . . . or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws.” It creates an exception to another law, the Posse Comitatus Act, “that generally bars federal military personnel from participating in civilian law enforcement.”
More than once during his administration, Donald Trump sought to invoke the Insurrection Act. He reportedly expressed an interest in using the military to stop the violent protests that followed the murder of George Floyd at the hands of police in Minnesota, something he was urged to do by Arkansas Sen. Tom Cotton. White House aides reportedly even prepared an executive order invoking the Insurrection Act for the use of troops to march on the streets of Washington, D.C. At the time, Secretary of Defense Mark Esper and Gen. Mark Milley, chairman of the Joint Chiefs of Staff, apparently stopped Trump from doing so.
But that was then.
Do not think for a moment that because we and the Constitution narrowly managed to survive a first Trump administration that our freedom would survive a second. Indeed, Esper warned last year that Trump would invoke the Insurrection Act right after his inauguration in January 2025.
It isn’t hard to picture the man whom courts have found to be a January 6th insurrectionist using the Insurrection Act against non-insurrectionists. “Mr. Trump has boasted,” the Times reports, “that, if he returns to the White House, he will dispatch forces without any request for intervention by local authorities.”
So much for a GOP that once aimed to preserve the balance in state and federal power and to respect states’ authority to handle issues of law and order.
Times reporters viewed a 2023 email from staff at the Center for Renewing America, one of several new Trump-aligned think tanks. The email discussed ideas that, as the Times put it, “could be put into effect by a president unilaterally.
Among them: “Insurrection—stop riots—Day 1, easy.”
Does “Day 1” ring any bells? That’s the day on which Trump has said he would be a dictator. And if you think the courts would stop the president, you must not have heard about the July 1 Supreme Court decision on presidential immunity that put Trump above the law.
IF DONALD TRUMP WERE DEFEATED and a new Congress were willing, it isn’t difficult to imagine some of the fixes that could be made to the Insurrection Act to ensure that it isn’t abused. For example, the act could be amended to provide that a president may only use its authority as a last resort when local law enforcement is not sufficient. In addition, Congress should define more precisely the conditions upon which the president may invoke the statutes—terms like “unlawful obstructions . . . or assemblages” that “make it impracticable to enforce the laws.”
In April, a working group convened by the American Law Institute proposed that the law be changed so that no president can deploy the military unless there’s violence that “overwhelms the capacity of federal, state, and local authorities to protect public safety and security.” In addition to that change, a Harris administration should also push Congress to change the language of the current statute that says that when “unlawful obstructions” arise, a president may respond “by using the militia or the armed forces, or both, or by any other means” (emphasis added).
The Brennan Center for Justice has identified the grave danger in that language:
This alarming delegation of unlimited power explains why the Oath Keepers and similar groups hung their hopes on this law. Congress has defined “militia” to include “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 and of female citizens of the United States who are members of the National Guard.” A substantial portion of white supremacist organizations’ members would likely meet that definition, and in theory, the others could be mobilized under the “any other means” language.
Perhaps Trump would pick from among white supremacist militias only “the very fine people,” as he infamously said existed “on both sides” in 2017 after the violent “Unite the Right” rally in Charlottesville. “Blood and Soil” was the Nazi slogan they chanted, and any Trump administration’s abuse of the Insurrection Act could easily spill innocent blood on U.S. soil.
Protecting democracy and freedom depends on preventing Trump from ever again getting his hands on the awesome power of the presidency. But it will also take the election of a rule-of-law-Congress to fix the Insurrection Act to help prevent its abuse in the future. Our First Amendment rights to speak and assemble, as well as the nation’s domestic tranquility, will be on the ballot this November.
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