There is a land mine embedded in the United States Code, one that Donald Trump, if reelected president, could use to destroy our republic. But it’s not too late for Congress to defuse the mine now and protect America.
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.
These flaws are especially relevant because 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 were suggestions that he utilize the act as part of his plot to steal the 2020 election; and now 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.
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Moreover, these reports have to be read in the context of Trump’s latest public pronouncements. 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.”
Some version of the Insurrection Act is probably necessary. After all, from the Whiskey Rebellion to the Civil War to Trump’s own insurrection 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 contains a number of provisions, and not all are equally bad. For example, 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.
But the act gets worse, much worse.
‘Whenever the president considers …’
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.” 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 workforce. 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.
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. For example, it was used repeatedly to suppress racist violence in the South during the Reconstruction era and the Civil Rights Movement. Most recently, 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.
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.
There’s still time
There is still time, however, to take this terrible tool out of Trump’s potential hands. The Insurrection Act has not always been so broad. In its earliest versions, the president’s power was much more carefully constrained. But Congress expanded the president’s power after the Civil War, in part to deal with racist insurgencies in the defeated Confederacy.
It’s time to rein in the excesses of the act. In 2022, Elizabeth Goitein and Joseph Nunn from the Brennan Center for Justice submitted a comprehensive reform proposal to the House Select Committee to Investigate the January 6th Attack on the United States Capitol. The proposal 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. It’s a proposal worth adopting.
I’m not naive. I recognize that it will be difficult if not impossible for any reform bill to pass Congress. Mike Johnson, 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.
It’s not hard to imagine what could happen if we don’t. An angry, vindictive president could send regular army troops straight into American cities at the first hint of protest. This would place both the American polity and the American military under immense strain. While the former consequence may be more obvious, the latter is also important. Many soldiers would be deeply unhappy to be deployed against their countrymen and would be rightly concerned that a reckless deployment would be accompanied by reckless orders. Dominating the streets of New York is not the mission they signed up for.
Too much presidential power
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.
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.
David French joined The New York Times as an Opinion columnist in January 2023. Before that, he was a senior editor at The Dispatch, which he helped start, and a contributing writer at The Atlantic. He spent most of his career as a practicing lawyer, working in commercial and constitutional litigation. In his late 30s, he joined the United States Army Reserve as a judge advocate general. David deployed to Iraq in 2007 and served in Diyala Province, where he was awarded a Bronze Star. He is a former president of the Foundation for Individual Rights and Expression. His most recent book is “Divided We Fall: America’s Secession Threat and How to Restore Our Nation.” He lives in Franklin, Tenn.