Brennan Center for Justice: “On September 20, 2022, Elizabeth Goitein, Senior Director of the Liberty & National Security Program, and Joseph Nunn, Counsel, submitted a written statement to the House Select Committee to Investigate the January 6th Attack on the United States Capitol. Their statement describes the history and flaws of the Insurrection Act and outlines a comprehensive proposal for reform.
The Insurrection Act gives the president sweeping powers to deploy federal military forces on American soil to quell civil unrest. Concerns about how former president Donald Trump could have used the Act on or around January 6, 2021, to impede the transition of power have underscored the need for reform. As Goitein and Nunn’s statement demonstrates, the vague and archaic language of this law, which has not been meaningfully updated in 150 years, provides the president with almost limitless discretion to deploy the military domestically. Its triggering conditions lack useful limiting principles; it appears to confer boundless authority once invoked; and it dispenses with critical legislative and judicial checks on presidential power. After detailing the Act’s history and flaws, Goitein and Nunn provide a comprehensive roadmap for reform. Their proposal would more clearly delineate the circumstances that could give rise to the domestic deployment of military force, and it would specify what actions are—and are not—authorized upon deployment. It would also establish checks against abuse, both by requiring Congress to approve any deployment longer than seven days and by authorizing judicial review. This revamped Insurrection Act would constrain presidential abuse while retaining needed flexibility in moments of crisis.”