Still No Fix to Our Most Dangerous Law

Donald Trump expects there to be riotous protests if he is elected and has let it be known that he will, the moment he is inaugurated, invoke the Insurrection Act to bring the American military into the streets of our cities to round up and detain protesters.

To reinforce that this is not his idle musing, you might recall that Trump publicly expressed regret that he did not deploy the Act to quell the unrest after the murder of George Floyd. He further said he would not hesitate to use the act in the future. He is a president who thinks the Constitution is just so many disposable words, saying in 2022 that what he fantasized was a fraudulent 2020 election “allows for the termination of all rules, regulations, and articles, even those found in the Constitution.” Invoking the Act to deploy military rule within the United States would show Putin and Xi that he is just as powerful as they, elevating himself into the exclusive club of the world's dictators to which he has aspired.

The Insurrection Act of 1807, so named although it dates from even earlier, 1792, has been used responsibly by several presidents. Lincoln in 1861's insurrection in the South; Grant to put down the first Ku Klux Klan in the 1870s; Jackson, Hayes, Grover Cleveland and others, often to intervene in
U.S. troops in Salt Lake City.

labor disputes (on behalf of employers); Eisenhower, Kennedy, and Johnson during the civil rights movement to enforce desegregation. Most notably it was not invoked on January 6, 2021 to quash an insurrection called to action by then-president Trump

In 1992 George H. W. Bush used troops to quell riots after the police beatings of Rodney King in Los Angeles. But that provides the example that it was not at the president's initiative. It was at the request of the California governor in accord with the first part of the Act which provides for a state’s governor or legislature to ask the president to take action when faced with out of control public disorder.

It is the second part of the act which puts a dangerous weapon in the hands of a president like Trump, the first president to pose such a threat. It gives the president the right to call out the army or federalize the national guard of any state…

“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 that it is entirely up to the president without any legislative oversight or judicial review. Moreover, there is no time limit, no “sunset” to end the martial law.

The third section says much the same and together they give the president the sweeping discretion to decide which of obstructions, combinations, assemblages, rebellion, insurrection, domestic violence, conspiracy or any combination of choosing to justify decreeing that the military take charge over their own people.

Repairs to the act have been proposed. Bob Bauer, of New York University School of Law and former White House counsel to President Obama, and Jack Goldsmith, a professor at Harvard.Law School and formerly assistant attorney general under George W. Bush, have proposed fixes that badly need to be in place in time to prevent a tyranny. First, the sweeping list just cited needs to be narrowed and defined. Second, a president needs to take only upon consultation with state officials and issuance of a finding that states the case for intervention. Third, Congress should set a time limit and approve any extensions.

The Brennan Center for Justice at NYU has proffered a similar proposal with the added requirement that there be a judicial review of the president’s actions.

The Federalist Society, a prime mover of the Project 2025 plan to take over the government, believes in the unitary theory of the presidency which says that the president of the United States should have total power to control the entire federal executive branch. House Speaker Mike Johnson, who was discovered to be the prime mover to line up believers in the stolen
The once president and House Speaker Johnson at Mar a Lago.

election and induce 139 Republicans to vote against certifying Biden's election, is all in for Trump and certainly Project 2025. Johnson went to Mar a Lago for the weekend where he will receive instructions from Trump, salivates over the prospect of wielding the Insurrection Act.

So, none of these parties is inclined to diminish the president’s power conferred by the ill-conceived Insurrection Act. From all that Trump has said, we might therefore expect martial law should he win re-election even if protests are minor. It will be a disheartening outcome: a law enacted at the very beginning of the country lying in wait for 232 years to finally undermine the world’s longest running Constitution.