An Army Turned Inward: Reforming the Insurrection Act to Guard Against Abuse

• Author: Elizabeth Goitein/Joseph Nunn
• Position: Senior Director, Liberty and National Security Program, Brennan Center for Justice at New York University School of Law/Counsel, Liberty and National Security Program, Brennan Center for Justice at New York University School of Law
• Pages: 355-400

An Army Turned Inward: Reforming the

Insurrection Act to Guard Against Abuse

Elizabeth Goitein* and Joseph Nunn**

INTRODUCTION

On January 6, 2021, as supporters of Donald Trump prepared to storm the U.S.

Capitol in an effort to prevent lawmakers from certifying the results of the 2020

presidential election, members of the Oath Keepers anxiously checked their

phones for a message from Trump. What they were anticipating was no mere

directive to wreak havoc. Spurred by the claims of their leader, Stewart Rhodes,

they expected Trump to draft them into military service through an invocation of

the Insurrection Act.

1

Alan Feuer, Oath Keepers Leader Sought to Ask Trump to Unleash His Militia, N.Y. TIMES (May

4, 2022), https://perma.cc/PJ67-HZPJ.

This might seem like another wild conspiracy theory perpetrated by right-wing

extremists with no understanding of the law. In fact, the Oath Keepers’ concep-

tion of Trump’s powers under the Insurrection Act was frighteningly close to the

mark.

The Insurrection Act is among the most potent of the president’s emergency

powers. It is also among those most susceptible to abuse. The Act authorizes the

president to deploy the U.S. armed forces and the militia — broadly defined to

include a wide swathe of “able-bodied males” — to suppress insurrections, quell

civil unrest or domestic violence, and enforce the law when it is being

obstructed.

2

The criteria for deployment are set forth in vague and archaic terms

that provide few meaningful constraints. Moreover, the determination of whether

these criteria have been met is left entirely to the president; neither Congress nor

the courts are given any role in the process. The Act provides no limits on what

actions military forces may take once deployed.

* Senior Director, Liberty and National Security Program, Brennan Center for Justice at New York

University School of Law.

** Counsel, Liberty and National Security Program, Brennan Center for Justice at New York

University School of Law. The authors would like to thank the following individuals for generously

sharing their time and extensive expertise: Scott R. Anderson, William C. Banks, Stephen Dycus,

Eugene R. Fidell, Jack Goldsmith, Ryan Goodman, Thaddeus A. Hoffmeister, Mark Nevitt, Dakota

Rudesill, and Stephen I. Vladeck. We also extend thanks to Protect Democracy, Human Rights First, the

Project On Government Oversight, and the Niskanen Center, all of which endorsed our legislative

reform proposal, and to our colleagues in those and other organizations who have been extraordinary

partners in our efforts to reconceive and reform domestic deployment authorities: Cole Blum, Soren

Dayton, Katherine Hawkins, Kodiak Hill-Davis, Emma Horseman, Christine Kwon, Kate Oh, Chris

Purdy, Ariela Rosenberg, and Sarah Turberville. Finally, we are deeply grateful to Sahil Singhvi and

Benjamin Waldman for their outstanding research assistance. © 2023, Elizabeth Goitein and Joseph

Nunn.

1.

2. 10 U.S.C. ch. 13., §§ 251–255.

355

Beyond these flaws, the law is also badly outdated. It was last amended in the

1870s, as the federal government struggled to contain a violent insurgency in the

South spearheaded by the Ku Klux Klan. The civilian law enforcement resources

available to counter this threat were negligible. The threats to law and order that

exist today look nothing like those that marked the aftermath of the Civil War,

and the capabilities of civilian law enforcement are orders of magnitude greater.

Yet the law remains unchanged.

Even in a vacuum, the need to reform the Insurrection Act would be obvious.

Unchecked executive discretion to use the military as a domestic police force is

simply incompatible with liberal democracy. The events that took place between

the 2020 presidential election and January 6, however, underscore the urgency of

reform. From the time it became clear that Joe Biden had won the 2020 presiden-

tial election, close allies of Trump were seeking ostensibly “legal” ways that he

could use emergency powers to overturn the election results. Several called on

Trump to invoke the Insurrection Act and deploy federal troops for the purpose of

impeding the transition.

Although the Insurrection Act would not have given Trump any power to over-

turn the election results, the danger of Trump invoking the Act was real, and it

was particularly acute on January 6. The attack on the U.S. Capitol would have

provided a ready excuse for triggering the Act and using the military to shut

down Congress, thus preventing or delaying the certification of the vote — and

potentially leading to more violence. It would have been up to the courts to reject

this move, and courts have refused to question presidents’ judgment about the

necessity of deploying troops in domestic emergencies.

In this article, we propose comprehensive reforms to the Insurrection Act. Our

recommended changes would clarify and narrow the criteria for deployment,

specify what actions are and are not authorized when the Act is invoked, and

allow both Congress and the courts to serve as checks against abuse or overreach.

At the same time — and recognizing that the attack of January 6 could presage

future violence that might test the capacity of civilian law enforcement — we

have sought to preserve sufficient flexibility to ensure that presidents can respond

to urgent crises quickly and with the resources they need.

This article proceeds in four parts. The first discusses the Anglo-American tra-

dition against military interference in civilian affairs and that tradition’s most sig-

nificant expression in U.S. law today: the Posse Comitatus Act. Part II provides

an overview of the Insurrection Act, the history of its development, and a sum-

mary of how past presidents have used it. Part III then addresses the problems

with the Act — from the opacity of the language to the outdated assumptions

upon which it rests — and explores why these problems make the Act especially

dangerous now. Part IV lays out in detail our proposal for replacing the

Insurrection Act with a law that better defines the boundaries of the president’s

power and includes effective checks against abuse. Finally, the article includes a

brief appendix summarizing our reform proposal.

356 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 13:355

I. THE PRINCIPLE OF POSSE COMITATUS

Before delving into the Insurrection Act, it is important to understand the long-

standing principles that govern the domestic deployment of federal troops in the

United States. These principles first found expression in the laws of England, cen-

turies before the founding of our nation. They are reflected in the design of our

Constitution and ultimately embodied in the Posse Comitatus Act.

A. The Anglo-American Tradition Against Military Interference in Civilian Affairs

There is a tradition in this country, “born in England and developed in the early

years of our nation, that abhors military involvement in civilian affairs.”

3

It flows

from a fear, shared by “[p]eople of many ages and countries,” of the subordina-

tion of civilian authority to military rule.

4

In the United States, “that fear has

become part of our cultural and political institutions.”

5

In Anglo-American law, efforts to constrain military intrusion into civilian

government can be traced all the way to the Magna Carta, which declares that

“no free man shall be . . . imprisoned ... or in any other way destroyed ... except

by the legal judgment of his peers or by the law of the land.”

6

Four hundred years

later, the Petition of Right added further protections, outlawing both the quarter-

ing of troops in private homes and the use of martial law commissions to punish

civilians.

7

Both of these documents resulted from Britain’s direct experience with

kings who used their armies to oppress and burden the civilian population.

8

The

fact that the Magna Carta and the Petition of Right limited British monarchs’

power to use the military domestically was just as important as the specifics of

the restrictions they imposed, because it established a precedent in Anglo-

American law for legislative control over the domestic activities of the military—

a precedent that was almost four hundred years old at the time the first U.S. colo-

nies were founded.

A century and a half after the Petition of Right, the American Revolution was

sparked in part by what the American colonists saw as the betrayal of these funda-

mental promises by the British government.

9

Thus, the Declaration of Independence

charges King George III with:

3. JENNIFER K. ELSEA, CONG. RSCH SERV., R42659, THE POSSE COMITATUS ACT AND RELATED

MATTERS: THE USE OF THE MILITARY TO EXECUTE CIVILIAN LAW 1 (2018).

4. Duncan v. Kahanamoku, 327 U.S. 304, 319 (1946).

5. Id.

6. ELSEA, supra note 3, at 2 (quoting Magna Carta, ch. 39 (1225) [ch.29 in the Charter of King John

(1215)], reprinted in WILLIAM F. SWINDLER, MAGNA CARTA: LEGEND AND LEGACY 315–16 (1965)).

7. ELSEA, supra note 3, at 3 (citing Petition of Right, 3 Car. I, c.1, §§ 3, 4, 7, 10, reprinted in

WILLIAM STUBBS, SELECT CHARTERS AND OTHER ILLUSTRATIONS OF ENGLISH CONSTITUTIONAL

HISTORY FROM THE EARLIEST TIMES TO THE REIGN OF EDWARD THE FIRST 515–17 (8th ed. 1895)).

8. ELSEA, supra note 3, at 2. See generally JOHN M. COLLINS, MARTIAL LAW AND ENGLISH LAWS,

C.1500–C.1700 (2016).

9. David E. Engdahl, Soldiers, Riots, and Revolution: The Law and History of Military Troops in

Civil Disorders, 57 IOWA L. REV. 1, 24–25 (1971).

2023] ARMY TURNED INWARD 357