The potential for a second Trump term demands major reform.
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Donald Trump has made clear that, in a second term, he would govern differently than any president in U.S. history. He has hinted at suspending the Constitution
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, building vast deportation camps
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, weaponizing the Department of Justice
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, and mass firing career civil servants
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.
Here’s one you might have missed: he reportedly plans to invoke the Insurrection Act, which allows the president to use the military as a domestic police force, on his first day in office.
In 2020, of course, Trump himself engineered a shambolic insurrection. This time, the thought goes, if he is displeased by protests, he will use the law as a way to crack down and grab more power. Think of the “Reichstag moment
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” reportedly feared by General Mark Milley three years ago.
Much like the Electoral Count Act — a similarly archaic and poorly drafted law that Trump attempted to exploit — the Insurrection Act was written for a different time and urgently needs reform
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, as my colleague Joseph Nunn writes.
There’s some deep history to be aware of. In the 19th century, the military was used domestically to a wide variety of ends: to persecute Native American tribes on the frontier and capture fugitive slaves, but also to ensure Black men could vote and crush the Ku Klux Klan. It has a complicated record during a complicated century.
Congress intervened in 1878, prohibiting the president from using federal troops to enforce civilian law under most circumstances. The Insurrection Act, which dates all the way back to 1792, was maintained as an exception to this prohibition.
The law is a model of how not to draft major legislation. Key terms like “insurrection” and “rebellion” are left undefined. The language is so outdated that no modern American can be sure of its meaning. The few times the law was reformed, it was changed to give the president more power rather than less. And courts have interpreted it to grant the president exclusive and unreviewable authority to decide whether the conditions to deploy the military have been met.
There’s a complete absence of checks and balances. As a result, we rely on the wisdom and good faith of a single person to uphold the important wall between military action and domestic policing.
Trump reportedly considered activating the Insurrection Act twice during his presidency — first to quell Black Lives Matter protests and later to hold onto power after his election defeat.
The Brennan Center has proposed important reforms to the Insurrection Act. Congress should define the law’s critical terms. Legislators and judges must play a larger role in overseeing the president’s exercise of the law. There’s nothing remotely partisan about these changes — they’re common sense. Congress can and should adopt them today.
An Imbalance of Local Political Power in Georgia
Over the past decade, rapidly growing communities of color have reshaped Georgia’s demographic and political makeup, but the state’s local institutions fail to reflect those changes. A new Brennan Center report finds that Asian, Black, and Latino Georgians are severely underrepresented in local government, with people of color making up half the state’s population yet holding only 27 percent of county commission seats and 29 percent of school board seats. Our experts point out several barriers between Georgians of color and fair representation at the local level and propose reforms to dismantle them. Read more
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Busting Criminal Justice Reform Myths
Lawmakers in states across the country are successfully pushing sensible policies that make criminal justice fairer and more effective. Although some pundits and politicians have blamed such reforms for rising crime, there’s no evidence to support this claim. “Leaders everywhere should take note: Focusing on fairness and humanity in criminal justice goes hand in hand with public safety,” Lauren-Brooke Eisen and Ames Grawert write in Governing. READ MORE
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Advisory Opinions Explained
Unlike federal courts, many state supreme courts freely issue advisory opinions — meaning they offer judicial guidance on a legal issue outside an actual case. This allows state courts to provide legal certainty without the need for litigation, but it raises questions about the separation of powers. A new State Court Report explainer highlights some of the pros and cons of judicial advisory opinions. Read more
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Battling for Control over Local Elections
Today, the Texas Supreme Court heard oral arguments in an elections dispute between Texas lawmakers and the state’s largest county. Harris County, home to Houston, claims that a 2022 law that gave the state control of the county’s election administration was designed to unconstitutionally target it for adopting expansive voting policies in 2020. “This case presents the Texas Supreme Court with the opportunity to clarify how far the legislature can go to intervene in local elections,” Jasleen Singh writes in State Court Report. READ MORE
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News
Elizabeth Goitein and Noah Chauvin on a congressional report on surveillance reform // JUST SECURITY
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Michael Li on the latest blow to the Voting Rights Act // INDEPENDENT
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Joseph Nunn on the need to reform the Insurrection Act // FEDERAL TIMES
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Eric Ruben on court decisions striking down gun regulations // NEW YORK TIMES
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