The Insurrection Act needs an overhaul

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President Donald Trump has threatened to invoke the federal Insurrection Act so he can send armed forces to several states and American cities and use those troops to confront American citizens. Among those cities that he has mentioned are Portland, Baltimore and New York.

The president claims he needs to do this in order to suppress civil disorder. The Insurrection Act creates an exception to the Posse Comitatus Act that limits the use of the military inside our border to enforce civil or criminal laws.

Invoking the Act would allow him to use the military to suppress rebellion and enforce federal laws, protect federal property and employees, restore order and act without the state’s consent.

Before the president can invoke and exercise the Insurrection Act, he first needs to determine whether an insurrection actually exists, and if so, issue a proclamation ordering the dispersal of those committing civil unrest.

The president can then call up the military if a state legislature so requests, or if the legislature is unable to meet the governor can make the request.

Trump can also call up the military to address an insurrection that makes it impossible to enforce the law. And finally, he can invoke the Insurrection Act to calm an insurrection, domestic violence, or a conspiracy, if the state cannot or will not protect the safety of its citizens or enforce its laws.

The Insurrection Act was enacted in 1807 and has been amended often. Critical terms are not defined by the Act.

Eisenhower and Kennedy used the Insurrection Act to enforce court-ordered desegregation when the state would not. And looting following natural disasters has also been a reason for governors to call upon the president for military assistance.

The Insurrection Act is in desperate need of an overhaul. The Brennan Center for Justice calls the 150-year-old law that allows American troops to be used against American citizens “overbroad and ripe for abuse.” We strongly agree.

The Insurrection Act should only be invoked in situations that are beyond the ability of civilian authorities to manage. But too much is left for the discretion of the pesident without an adequate explanation in the text of the act as to why and when it should be used. None of the salient conditions for military deployment are defined in the act.

In 1827, when the circumstances for invoking the Insurrection Act were narrow and obvious, the Supreme Court held that the authority to decide if conditions are warranted for invoking the act belongs solely and conclusively to the president. Subsequent decisions, as the circumstances for invoking the Act became more numerous and perhaps more complex, have at least suggested that the decision to invoke the Insurrection Act is subject to judicial review and that the president must act in good faith and must not exceed a permitted range of honest judgment. Recently, the Ninth Circuit Court of Appeals held that while the president has great latitude in determining whether troops could be sent to Los Angeles (he had not invoked the act) to protect federal property and employees, the decision must be made in good faith.

If Congress is ever to get its act together again, it must amend the Insurrection Act to define under exactly what circumstances it can be used, and what mechanics exist for a court to review a president’s decisions to invoke the act. Perhaps invoking the act is a joint decision between the president and Congress. One thing is sure, and that is the Insurrection Act is a potent medicine and all steps available should be taken to prevent its abuse.

Editorial Advisory Board Members Arthur F. Fergenson and Debra G. Schubert did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Arthur F. Fergenson

Nancy Forster

Susan Francis

Julie C. Janofsky

Ericka N. King

George Liebmann

George Nilson

Catherine Curran O’Malley

Angela W. Russell

Debra G. Schubert

Jeff Sovern

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.