Like so many laws that made sense in one context, the Insurrection Act, as amended, seemed like a good, if not necessary, idea at the time. And like so many laws that gave enormous power to the president, the guardrail was that the American people would never be so foolish as to elect a person to that high office who was so lacking in trust, so antagonistic to the Constitution, democracy and the rule of law, as to abuse that vast power. But that was then and this is now.
I’m talking about the Insurrection Act, a federal law that permits the president to deploy military troops in American communities to effectively act as a domestic police force under his direct command. In theory, there is a need for a well-drafted law that permits the use of federal troops in extreme circumstances to maintain order and protect the rule of law. The Insurrection 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.
Sure, as a law, it would ultimately be subject to the courts, assuming Trump doesn’t pull an Andrew Jackson and the military decides to play along. But in the case of the Insurrection Act, judicial review is a weak remedy. What use is a judicial determination that the use of the military against political enemies was wrong long after the bullets flew and the rifle butts cracked?
Initially, it limits the use of federal troops to instances where a state asks the president for backup.
…the first provision, 10 U.S.C. Section 251, provides that the president may deploy troops “upon the request of [a state’s] legislature or of its governor if the legislature cannot be convened” in the event of an insurrection. There is no unilateral presidential authority under this provision; the president’s power is activated only by a state request.
Mind you, this could be used by a governor who supports Trump to put down lawful protests as well as violence that arguably justifies the introduction of federal troops in state matters. But the Act doesn’t stop there.
But the act gets worse, much worse. The next section takes the gloves off, giving 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.” Note the key language: “whenever the president considers.” That means deployment is up to him and to him alone.
The section after that does much same thing, again granting the president the power to “take such measures he considers necessary” to suppress “any insurrection, domestic violence, unlawful combination or conspiracy.”
If this law has long been on the books, why then has the abuse of the Insurrection Act never been considered a serious threat?
You might wonder why the Insurrection Act hasn’t presented much of a problem before now. It’s been used rarely, and when it has been used, it’s been used for legitimate purposes.
That historical restraint has been dependent on a factor that is utterly absent from Trump: a basic commitment to the Constitution and democracy. 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. Trump not only has no such lines but also has made his vengeful intentions abundantly clear.
Unmentioned is that, for all their flaws, past presidents had a very real understanding that the American public would not tolerate such a usurpation of power by the president. We had a revolution. We had a civil war. But it’s been more than 150 years since we took to the streets against our government, and few really care to take up arms these days, even though some seem to be champing at the bit.
But recognizing the existence of the problem doesn’t mean the problem is easily solved.
I’m not naïve. I recognize that it will be difficult if not impossible for any reform bill to pass Congress. 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.
Frankly, David French seems quite naïve by saying that. That “it’s past time” doesn’t make it doable. With Mike Johnson as speaker of the House, and a Republican party held captive by MAGA insurgents, it doesn’t seem possible that any law limiting presidential authority under the Insurrection Act could make it to the floor, no less pass. But more to the point, it is highly unlikely that Trump supporters would favor any change to the Insurrection Act. They know that any normal president would never abuse his power, as constrained presidents in the past, and they want that power available to the Retributor in Chief should he be elected, which would definitely be the case in their eyes unless the election was rigged.
When you read misguided laws like the Insurrection Act, you realize that the long survival of the American republic is partly a result of good fortune. Congress, acting over decades, has gradually granted presidents far too much power, foolishly trusting them to act with at least a minimal level of integrity and decency.
David argues that, in light of Trump’s express intentions to undermine as much of the Constitution as he can grab, combined with the schism in the Democratic Party which provides aid and comfort to Hamas and Trump, we can no longer afford the luxury of trust.
Have we learned nothing from Animal House?