We should always take note when Congress discovers that a long-standing law doesn’t address our current reality. But when those members of Congress happen to be sitting on the select committee investigating the Jan. 6, 2021 attack on the U.S. Capitol and they are privy to a mountain of evidence related to the planning and execution of a purported plot to overturn a presidential election, they should have our undivided attention.
We have definitions of insurrection. We even have a law against it. What we don’t seem to have are carefully defined presidential parameters.
According to an April 19 report in The New York Times, that committee is considering whether the 1807 Insurrection Act needs revision. That act empowers the president to domestically deploy our armed forces, including the National Guard and active-duty military, to stop a rebellion or uprising against the government. If the committee sees a need to change a law that provides absolute power to a president, it’s likely that they’re seeing evidence that a president – in this case former President Donald Trump — came close to abusing that power.
We have definitions of insurrection. We even have a law against it. What we don’t seem to have, and what the committee seems focused on, is carefully defined presidential parameters to deal with it. Since that January 6, the word “insurrection” has been used by some – in my opinion correctly - to describe what happened at the Capitol that day. Black’s Law Dictionary defines insurrection as: “A rebellionor rising of citizens or subjects in resistance to their government. Insurrection consists in any combined resistance to the lawful authority of the state, with intent to cause the denial thereof, when the same is manifested, or intended to be manifested, by acts of violence.” Federal law makes insurrection punishable by a fine and up to ten years in prison. Yet, according to The New York Times report, it’s not the law against insurrection with which the committee finds issue; it’s the part of the law that permits a president to unilaterally proclaim that an insurrection is active and to use troops to quash whatever he thinks fits the bill.
There may be no greater presidential power than the authority to send our troops into battle. That authority is even weightier if the battle will be against us, on our own soil. In fact, there’s a law, the Posse Comitatus Act, that prohibits federal military forces from actively engaging in civilian law enforcement without congressional or constitutional authority. But the major exception to that rule is the Insurrection Act. That’s why we need to ensure that act is never misused by a president.
Trump threatened to invoke the Insurrection Act following the nationwide and sometimes violent protests that erupted after a Minneapolis police officer murdered George Floyd. Trump’s idea was successfully rejected by then Defense Secretary Mark Esper. The Insurrection Act came up again as Trump desperately considered options that would help him overturn Joe Biden’s victory over Trump in the 2020 election. The Times reports that Trump advisors, including former National Security Advisor Mike Flynn, and Roger Stone, suggested that martial law be declared or that the military be used to seize voting machines and “rerun” the election.
There are at least three possible solutions to checking a president intent on abusing his Insurrection Act power.
If the select committee looking into the Jan. 6 attack on the Capitol is reconsidering the Insurrection Act, its members may have seen some evidence that either Trump was close to inappropriately invoking the act, or that invoking the act was part of a proposed plan to unlawfully overturn the election – or both. Per the New York Times reporting, it’s more than one committee member that feels this way. Representative Zoe Lofgren, D-Calif., and a member that committee, said, “There are many of us who are of the view that the Insurrection Act, which the former president threatened to invoke multiple times throughout 2020, bears a review.”
There are at least three possible solutions to checking a president intent on abusing his Insurrection Act power. Any one of these suggestions would provide greater parameters than the total lack of restraint that currently exists, and none would prevent a president from quickly moving to deal with a rapidly developing domestic rebellion against the government.
First, the Insurrection Act should be amended to include some element of congressional oversight. When it comes to committing troops to combat on foreign soil, the War Powers Act puts restraints on a president in the form of congressional notification and authorization requirements. Specifically, the War Powers Act requires that Congress be notified within 48 hours of U.S. troops being introduced into foreign hostilities and mandates use of those troops end within 60 days unless Congress declares war or authorizes continuance. For a domestic deployment of U.S. forces, a president should be required to notify Congress within 24 hours, and that deployment should end in 48 hours without congressional authorization.
Second, in anticipation of a scenario such as the alleged discussions of the U.S. military seizing voting machines, where 48 hours would be just enough time for a president to complete a coup, the consent of one or more other executive branch members should be required. The mere idea that other high-ranking officials would have to sign off on an invocation of the Insurrection Act could have a chilling effect on a president considering an anti-democratic plot. For example, then Vice President Mike Pence refused to succumb to intense pressure from those demanding that he refuse to ratify the 2020 Electoral College vote. Then Attorney General William Barr eventually resigned when Trump insisted he find election fraud that didn’t exist. In fact, the attorney general should provide a Department of Justice opinion that the proposed insurrection invocation and troop deployment must not violate exercise of civil rights, as happened in 2020 after Floyd’s murder when the National Guard was deployed in response to the peaceful protests in Lafayette Square in Washington.
Third, a president’s signature on an Insurrection Act declaration should trigger automatic judicial review. As Kelly Magsamen of the Center for American Progress proposes in an excellent primer on changing the act, such a judicial review is especially necessary if the military is used to spy on or surveil Americans.
Rep. Adam Kinzinger, R-Ill, a member of the Select Committee, characterized the January 6 attack on our democracy as a “dry run” – implying it could happen again – perhaps successfully. It will happen again – unless we put mechanisms in place to constrain a corrupt president from exploiting the absolute power presently conveyed by the Insurrection Act. That change needs to happen now – before yet another authoritarian – or even the same one – tries another Jan. 6 and succeeds.