In a stark warning to the nation’s lawmakers, legal experts Bob Bauer and Jack Goldsmith have raised grave concerns about the potential misuse of the Insurrection Act should former President Donald Trump secure a second term. The law, dating back to 1807, empowers the president to deploy military forces within the United States, presenting, according to the experts, a dire threat to democratic principles and civil liberties.
Bauer, a former White House counsel during President Barack Obama’s tenure, and Goldsmith, a former assistant attorney general under President George W. Bush, penned an op-ed featured in the New York Times on Tuesday. Their urgent plea to Congress emphasizes the necessity of overhauling the Insurrection Act before the potential repercussions become insurmountable.
The Insurrection Act grants the president expansive authority to utilize armed forces and state militias in quelling insurrections, enforcing federal laws, and safeguarding civil rights. Notably, the law lacks explicit provisions mandating presidential consultation with Congress or obtaining congressional approval before activation.
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The legal scholars argue that the Insurrection Act, in its current form, represents a “uniquely dangerous” weapon, susceptible to abuse by leaders with a disdain for the rule of law and democratic norms, as demonstrated by Trump’s actions during and after the 2020 election.
Highlighting Trump’s endeavors to overturn election results, his encouragement of the violent Capitol riot on January 6, and his threats to invoke the Insurrection Act during protests against police brutality and racial injustice in the preceding year, Bauer and Goldsmith emphasize the urgent need for reform.
“The Insurrection Act is a loaded weapon that President Trump almost pulled the trigger on, and that he or another president may well use in the future,” they caution. “Congress should not wait for a constitutional crisis to defuse this bomb.”
Proposing substantive reforms to the Insurrection Act, Bauer and Goldsmith advocate for narrowing its scope, clarifying triggers, and limiting its duration. They underscore the necessity for increased congressional oversight, recommending a more significant role for Congress in approving the president’s use of the act and advocating for enhanced judicial review and restraint.
Drawing parallels to recent bipartisan efforts to reform the Electoral Count Act of 1887, which governs the certification of electoral votes, the legal experts stress the need for a collaborative and swift bipartisan approach to amending the Insurrection Act before the upcoming 2024 election.
As the specter of Trump’s potential candidacy looms and the possibility of invoking the Insurrection Act becomes more plausible, Bauer and Goldsmith assert that enacting these reforms is not just desirable but an imperative safeguard against potential constitutional crises.
“These simple changes would constitute a historic reform and would be far better than no reform at all,” they conclude. “The primary and urgent task is to bring the core of the president’s promiscuous Insurrection Act authority to heel.”
