The 19th-century version is a threat to democracy.

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When Congress last overhauled the Insurrection Act, we were a very different country. Less than a decade had passed since the Civil War. Federal troops were garrisoned in former Confederate states, and insurrectionists remained a threat. The White League, the Knights of the White Camelia, and, most infamously, the Ku Klux Klan terrorized communities. Law enforcement was rudimentary, and some major U.S. cities still lacked a formal police force.

It was during this period — the unruly, violent, seditious 19th century — that Congress handed the president vast powers to deploy the military to enforce federal law. The president no longer needed judicial approval for such deployments, and there was no limit on how long the deployment could last. Indeed, the president wasn’t even restricted to using U.S. troops to enforce the law. He could use “any other means.” (One wonders what, exactly, Congress had in mind.)

Times have changed, but the Insurrection Act hasn’t. There are still dangerously few checks on the president’s emergency powers. As my colleagues Elizabeth Goitein and Joseph Nunn argue in their written statement submitted yesterday

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to the House January 6 committee, it’s past time to reform the Insurrection Act.

Donald Trump considered invoking the Insurrection Act on two occasions. In a June 2020 statement from the White House, Trump threatened to “deploy the United States military and quickly solve the problem” of protests. Then, in the weeks following the 2020 election, Trump's allies urged him to invoke the Insurrection Act. Rep. Marjorie Taylor Greene (R-GA), for example, told the White House chief of staff that perhaps “the only way to save our Republic is for Trump to call for Marshall [sic] law.”

Under the Insurrection Act, as currently written, Trump could very likely have prevented Congress from meeting to certify his defeat. He could have done worse. Indeed, his supporters in white nationalist groups hoped that Trump would use the law to deputize them as his personal military force. Given how far he went to subvert the rule of law in January 2021, it’s almost surprising that Trump didn’t invoke the Insurrection Act.

The trick to reforming the Insurrection Act is to maintain executive flexibility when military force is truly justified, while preventing abuses like those contemplated by Trump.

First and foremost, Congress must specifically define what circumstances permit the president to invoke it. A true insurrection against the federal or state governments clearly justifies the use of the act. Obstruction of federal law should too, but only when it deprives a group or class of people of their constitutional rights or creates an immediate threat to public safety. As a reference point, both Presidents Dwight D. Eisenhower and John F. Kennedy used the Insurrection Act to overcome resistance to school desegregation.

While invoking the Insurrection Act necessarily expands the president’s powers, it should not render him quasi-omnipotent. The reformed law should prevent the president from suspending habeas corpus or allowing the military to entirely displace civilian authority.

Since even this more restrained version of the Insurrection Act still conveys significant power, there must be robust checks. The president, secretary of state, and attorney general should jointly communicate to Congress the conditions that justify invoking it. After seven days, the authority should expire without congressional authorization. And the availability of judicial review is a must.

Justice Robert Jackson once described the Korematsu decision, in which the Supreme Court allowed the president expansive emergency powers with inadequate oversight, as “a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” He could have said something similar about the Insurrection Act. This moment is an opportunity for meaningful reform.

The Mixed Results of Anti-Gerrymandering Reforms

Not all the redistricting reforms adopted in the last decade led to better outcomes this cycle. While some successfully created a fairer, more inclusive, and transparent process, those that involved politicians in line drawing produced gerrymandered maps or required court intervention to impose fair maps. “If there is one takeaway from seeing last decade’s reforms in action, it is that design matters,” Michael Li writes. Read more

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The Self-Inflicted Blows to SCOTUS’s Legitimacy

As the Supreme Court’s new supermajority seems bent on fulfilling long-standing conservative policy goals, Chief Justice John Roberts has brushed off current questions about the Court’s legitimacy. But an honest review of its actions last term reveals a pattern of overreach, ethical lapses, and unexplained decisions that suggests the public’s concerns are warranted. “To preserve the Court’s legitimacy as an institution that differs from the elected branches, the justices have to appear willing to sometimes ‘say what the law is’ in ways that do not serve their personal or partisan preferences,” Douglas Keith writes. Read more

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A Radical ‘Theory’ Based on Fake History

This fall, North Carolina’s Republican legislators will argue before the Supreme Court that the so-called “independent state legislature theory” gives them the authority to bypass their state constitution’s restrictions on partisan gerrymandering and voter suppression. This notion is not only a dangerous misreading of the Constitution that could grant state legislatures unchecked power over federal elections — their defense of the theory relies on an 1818 document that is a well-known fake. “So as the Supreme Court considers whether to blow up our electoral system, it should know the real American history,” Ethan Herenstein and Brian Palmer write. POLITICO

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Why New York Needs the Clean Slate Act

The New York State Legislature failed to pass the Clean Slate Act — which would have automatically sealed old criminal records — for the second time in two years. This is a missed opportunity to remove barriers to housing, education, and employment for as many as 1.4 million New Yorkers with criminal records as well as to significantly boost the state’s economy. “When lawmakers reconvene in January, this bill must be a priority,” Stephanie Wylie and Ames Grawert write. Read more

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Coming Up

VIRTUAL EVENT: Democracy on the Brink

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Wednesday, September 28, 6–7 p.m. ET

Ahead of the midterms, efforts to interfere with voting are in full swing. The implications are serious, especially for Latino and Black communities. State lawmakers are responding to false claims of a “stolen” election with legislation that restricts the right to vote. These communities also face the growing problem of misinformation. For an inside look at what these issues mean for the 2022 elections and beyond, join the virtual premiere of our recent conversation at the convention of the national associations of Black and Latino journalists. This event will include a live text chat Q&A with Brennan Center election expert Sean Morales-Doyle. RSVP today

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Spanish language interpretation will be available for this event featuring live text chat Q&A with Roberta Braga of the Equis Institute.

Produced in partnership with the National Association of Hispanic Journalists

VIRTUAL EVENT: What’s Prison For? In Conversation with Bill Keller

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Thursday, October 6, 6–7 p.m. ET

With roughly 2 million people behind bars, America’s prison system doesn’t exactly have a reputation for empathy — but could that change? Pulitzer Prize–winning journalist Bill Keller has spent years examining what is possible if prisons focus on preparing the incarcerated to be good citizens when they return to society, which the overwhelming majority will. In his new book, What’s Prison For? Punishment and Rehabilitation in the Age of Mass Incarceration

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, he shows us how we can reform our prisons and why there’s a reason for cautious optimism. Rehabilitation, he argues, is not only an investment in public safety but a moral imperative. Keller will be joined by moderator Jason D. Williamson, executive director of NYU Law School’s Center on Race, Inequality, and the Law. RSVP today

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Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.

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News

Ames Grawert on the rise in violent crime in 2020–2021 // FOX 56

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Sean Morales-Doyle on the spread of voter fraud conspiracy theories // NEW YORK TIMES

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Lawrence Norden on insider threats to election security // POLITICO

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Gowri Ramachandran on new state laws to protect election workers // CNN

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Feedback on this newsletter? Email us at [email protected]

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