Trump’s Contemplation of the Insurrection Act

This blog originally appeared at Brennan Center For Justice.

Reform is Imperative to Counter Potential for Second Trump Term

In a potential second term, Donald Trump signals a departure from conventional governance, alluding to actions such as suspending the Constitution, constructing extensive deportation facilities, politicizing the Department of Justice, and widespread termination of career civil servants.

An overlooked aspect: reports suggest that on his inaugural day, he intends to employ the Insurrection Act, granting the president the authority to deploy the military for domestic law enforcement purposes.

In 2020, Trump orchestrated a chaotic insurrection. The concern now is that if faced with protests, he might use the law as a means to suppress dissent and consolidate power. It brings to mind the “Reichstag moment” reportedly feared by General Mark Milley three years ago.

Similar to the Electoral Count Act, another outdated and poorly drafted law that Trump sought to manipulate, the Insurrection Act was crafted for a different era and is in dire need of reform, as highlighted by my colleague Joseph Nunn.

There’s a rich historical backdrop to consider. In the 19th century, the military played diverse domestic roles: from oppressing Native American tribes on the frontier and apprehending escaped slaves to securing the voting rights of Black men and suppressing the Ku Klux Klan. Its role was intricate in a complex century.

In 1878, Congress intervened by forbidding the president from deploying federal troops to enforce civilian law in most situations. The Insurrection Act, dating back to 1792, was preserved as an exception to this restriction.

The legislation serves as a prime example of how not to draft significant laws. Essential terms such as “insurrection” and “rebellion” remain undefined. The language is archaic, leaving modern Americans uncertain about its precise meaning. When the law underwent revisions, they tended to enhance presidential power rather than limit it. Courts have interpreted it to bestow upon the president exclusive and unreviewable authority in determining whether the conditions for deploying the military have been satisfied.

A notable absence of checks and balances characterizes the situation. Consequently, we depend on the discernment and good intentions of a solitary individual to maintain the crucial barrier between military operations and domestic law enforcement.

Twice during his presidency, Trump purportedly contemplated invoking the Insurrection Act — initially to suppress Black Lives Matter protests and subsequently to cling to power following his electoral defeat.

The Brennan Center has suggested crucial reforms to the Insurrection Act. Congress should provide clear definitions for the law’s essential terms. Increased oversight by legislators and judges is necessary for the president’s implementation of the law. These reforms are sensible and non-partisan, and Congress has the capability to implement them promptly.