There is a land mine called the Insurrection Act that Donald Trump, if re-elected president, could use to destroy our republic. This Act permits the president to deploy military troops in American communities to act as a domestic police force under his direct command.
The Act, which dates back to 1792 but has since been amended, is not, however, well drafted. And its flaws would give Trump enormous latitude to wield the staggering power of the state against his domestic political enemies.
Trump and his allies are keenly aware of the act’s provisions and have long expressed interest in its use. Trump has publicly regretted not using more military force to suppress riots in the wake of George Floyd’s killing in 2020.
There are reports that Trump might invoke the act on the first day of his next term, to suppress demonstrations, to control the border or both.
He has declared many of his domestic political opponents to be “vermin.” His campaign has promised that his critics’ “sad, miserable existence” will be “crushed.” And he has specifically told his followers, “I am your vengeance.”
From the Whiskey Rebellion to the Civil War to Trump’s own insurrection on Jan. 6, we have seen direct, violent challenges to federal authority.
But any such authorization should be carefully circumscribed and subject to oversight. The authority granted by the act, however, is remarkably broad, and oversight is virtually nonexistent.
The Insurrection Act says the president’s power is activated only by a state request.
But the act gives the president the ability to call out the National Guard or the regular army “whenever the president considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any state by the ordinary course of judicial proceedings.”
This broad grant of power makes the Insurrection Act far more immediately dangerous than many other threatened Trump actions, such as prosecuting political opponents and transforming the federal work force.
Judicial review can blunt many of Trump’s worst initiatives, but there’s no such obvious check on the use of his power under the act.
The Insurrection Act has been used rarely, and when it has been used, it’s been used for legitimate purposes.
For example, it was used repeatedly to suppress racist violence in the South during the Reconstruction era and the civil rights movement.
George H.W. Bush invoked it in 1992 — at the request of the governor of California — to assist in quelling the extreme violence of the Rodney King riots in Los Angeles.
Previous presidents, for all their many flaws, still largely upheld and respected the rule of law. Even in their most corrupt moments, there were lines they wouldn’t cross.
The Brennan Center for Justice submitted a comprehensive reform proposal that would narrow and carefully define the circumstances in which the president can deploy troops, provide for a congressional review and approval process and enable judicial review of claims that the legal criteria for deployment were not met.
Mike Johnson, the speaker of the Republican-led House of Representatives, was a central player in Trump’s effort to overturn the 2020 election.
Many of Trump’s congressional allies share his thirst for vengeance. But it’s past time to highlight this problem in the federal code. It’s past time to strip unilateral authority from the president.
Trump has demonstrated that trust is no longer a luxury we can afford. It’s time to take from presidents a power they never should have possessed. No man or woman should be able to unilaterally deploy the armed forces to control America’s streets.
Don’t forget to vote to protect your freedoms.