The Insurrection Act is a dangerous law that gives the president broad powers to authorize far-reaching uses of the military in the domestic sphere. It is based on highly permissive standards for action and provides neither a role for Congress nor a basis for serious judicial review.
During the Biden administration, we — and many others — failed to persuade Congress to reform this alarming law. Now, in the second Trump administration, the president is threatening to invoke it for sweeping domestic military deployments in big cities across the country.
We have no illusions that a Congress entirely under President Trump’s thumb will act on this matter now. But if we see instances of reckless or accidental uses of force by American soldiers against American citizens, the public would quickly rediscover the dangers of militarizing the homeland and the politics on these issues would quickly change, too.
That is why Congress should take up Insurrection Act reform.
President Trump’s efforts to deploy the National Guard in Los Angeles, Chicago and Portland have taken place under a statute that allows the federalization of National Guard troops and an executive order that specifies their use for protecting federal facilities and functions. These authorities together stay within the constraints of the Posse Comitatus Act, a 19th-century law that bars the use of federal military for law enforcement — arrests, seizures, nondefensive uses of force and the like — unless “expressly authorized by the Constitution or Act of Congress.”
The Insurrection Act — a collection of laws enacted across the nation’s first century — is different: It offers the president much more robust authorities and gives him several advantages over the current mode of military deployment.
First, it authorizes use of the regular armed forces in addition to the Guard. This gives the president access to a much larger military force without the need to deal with complications that arise when federalizing and organizing state-level National Guard troops.
Second, the act has extremely broad and vaguely worded triggers for its use and thus affords a president the widest conceivable discretion. One provision says the president can use the armed forces “as he considers necessary” to enforce federal law against “obstructions,” “combinations” or “assemblages” that make laws “impracticable to enforce.” Another authorizes the president to order the armed forces to “take such measures as he considers necessary to suppress” any domestic violence or “unlawful combination” if the violence or combination “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” The act has several other predicates.
Third, the Insurrection Act, once invoked, avoids the Posse Comitatus bar, since it constitutes an express congressional authorization that allows the use of the military for law-enforcement purposes. If the president invoked the Insurrection Act, he could use the military far beyond protecting federal law-enforcement operations related to U.S. Immigration and Customs Enforcement. He could instead use the military as a substitute for ICE in immigration enforcement as long as one of the permissive legal triggers was satisfied.
Fourth, the president would not be limited to using the military for immigration law enforcement. He could use regular forces for any domestic law enforcement function, including to suppress violence in cities — again, as long as one of the lax rules for invoking the law was satisfied.
Fifth, the president will receive very significant deference from courts in his determination that an Insurrection Act predicate is satisfied. The leading case in the Supreme Court suggests that the president has “exclusive” authority to determine the “exigency” that triggers the act. And the act itself contains language — “whenever the President considers” and “as he considers necessary” — that will further encourage judicial deference. Courts will not play dead in reviewing Insurrection Act deployments, but they have very limited tools.
The president recently signaled that he may invoke the Insurrection Act. Vice President JD Vance confirmed that Mr. Trump is “looking at all of his options” because “crime has gotten out of control in our cities.”
But city crime prevention is far from the act’s only potential use. The president in March issued an executive order that contemplated a legally contested federal takeover of federal elections to redress supposed “fraud, errors or suspicion.” Notwithstanding criminal laws that prohibit members or officers of the military from deploying troops to polling places, it is easy to imagine Mr. Trump issuing such orders in next year’s congressional elections on the claim of a president’s complete authority and control over the military to deal under the Insurrection Act with a “combination or conspiracy” that opposes or obstructs the execution of federal election laws.
If the president invokes the act, litigation will almost surely follow. States and localities could sue. But such suits will be very hard to win, given the sweep of the authority.
Most proposals to reform the Insurrection Act have three core elements. Congress should tighten the statutory triggers — for example, by requiring that “domestic violence” overwhelm the safety and security capacities of state and local authorities before the act can be invoked. It should impose consultation and reporting requirements. And, most important, it should establish a time limit on troop deployments of no more than 30 days without new congressional approval.
A handful of bills to reform the act (including one this year) have been introduced, but they never reached a vote. Reform remains critical. U.S. military officials have long been reluctant to use the armed forces for policing at home. There was broad bipartisan support during the Biden years to reform other emergency powers. Congress as recently as 2021 demonstrated its continued commitment to the Posse Comitatus Act by clarifying that it applies to every major component of the federal armed forces.
Conservatives once cared a lot about the dangers of the military in the domestic realm and about protecting state and local authorities from federal military interference. Gov. Kevin Stitt of Oklahoma, a Republican and the chairman of the National Governors Association, recently articulated traditional conservative concerns in response to the deployment of out-of-state National Guard troops in Illinois. “Oklahomans would lose their mind if Pritzker in Illinois sent troops down to Oklahoma during the Biden administration,” he said, referring to Gov. JB Pritzker of Illinois and adding that the deployment violated “states’ rights.”
The Insurrection Act was written for a different century and a different conception of the presidency and presidential self-restraint. It will be a tragedy if Congress does not enact reforms until after the law’s dangers have become undeniably clear.
Bob Bauer, a professor of practice and distinguished scholar in residence at New York University School of Law and a former White House counsel, and Jack Goldsmith, a law professor at Harvard, a nonresident senior fellow at the American Enterprise Institute and a former assistant attorney general, are the authors of “After Trump: Reconstructing the Presidency” and the newsletter Executive Functions.
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