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One of the great sub-texts of the US presidential elections scheduled for November 2024 revolves around the application and consequences of the US Insurrection Act--and with that the ability of factions to defend or destroy the aspirations, ambitions, and political career of Mr. Trump as he seeks (again) the US presidency. This is part of a deeper factional war (there is no better word sadly) among American governing elites and their fight for the hearts and mind of the population, collections of individuals that all factions might be tempted to signify as the purportedly easily categorized variations of "baskets of deplorables" whose votes they both need (1) to secure control of the political offices from which management of the American public and private administrative apparatus is easier, and (2) to manage them through those organs of the state apparatus and their allies in the private sphere. That war has taken not just a narrative turn (my discussion here, here, and here), but also has sought to use the great levers of American reality making through the courts (e.g. here, here, and general theoretical discussion here, and here).
Now comes statutory reform. In a Press Release dated 8 April 2024, the American Law Institute made available its guidance for Insurrection Act Reform.
Today, a bipartisan group led by Bob Bauer (NYU School of Law and former White House Counsel to President Obama) and Jack Goldsmith (Harvard Law School and former Assistant Attorney General in the George W. Bush administration) issued “Principles for Insurrection Act Reform.” The distinguished group, convened at the invitation of The American Law Institute, is made up of persons with a range of legal and political views who have a rich variety of backgrounds in constitutional law, national security law, and military law, and have held senior positions in government. A complete list of group members can be found below.
Explaining the impetus for the project, Bauer said, “The Insurrection Act is a centuries-old federal statute that authorizes the president to deploy the armed forces and state militias into action within the United States to address rebellion against the federal or state governments, major outbreaks of domestic violence, and the imminent or actual collapse of law enforcement. It is poorly drafted, replete with vague or obsolete language, and it has been clear for decades that this antiquated law needs serious revision.”
“There is agreement on both sides of the aisle that the Insurrection Act gives any president too much unchecked power,” Goldsmith added. “The Principles for Insurrection Act Reform proposes a set of core standards to guide constitutionally sound, bipartisan reform that aims to address the Act’s flaws while reflecting the need for U.S. armed forces to remain available in extreme cases to respond to domestic threats. These Principles are neutral in design and apply to any president’s invocation of the Insurrection Act.” (Press Release)
At its heart is its conclusion--which also serves as the jumping off point for the textual ecologies they mean to build around it.
A reformed Insurrection Act should:• Require the president to consult, prior to the deployment of troops, with the governor of any state into which troops will be deployed.
• Require the president to make findings on the need to invoke the Insurrection Act, and to report these findings to Congress, along with a summary of consultations with state authorities, within 24 hours of deployment.
• Establish a time limit on the president’s authority to deploy troops under the Insurrection Act. The time limit should not exceed 30 days absent renewed congressional authorization.• Establish a fast-track procedure for Congress to vote on renewal of presidential authority under the Insurrection Act. (ALI Principles for Insurrection Act Reform (8 April 2024) pp. 3-4)
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Reform is necessary. The approach suggested represents a reasonable, or at least plausible, grounding for first steps in the direction of reform--and more importantly for sparking a national conversation about "insurrection" and the power of political officials to direct the military in the protection of the nation (on this case against elements of itself). Ironically that discussion may paralell the (much mocked in the West) discussion of the development of a theoretical framework of "patriots/hostile forces" at the heart of Marxist-Leninist approaches to a similar problem. The answer that thoughtful protectors of liberal democracy will be quite different from those developed in the Marxist-Leninist camp. But those differences can be useful in testing and affirming the principles and expression of liberal democracy in an influential federal republic.
The exploitation of the ALI's reform principles in the current election campaign indirectly (or directly) is onevitable. The exhortation of Congress is theatrical and likely unavailing at least until Fenruary 2025. I suspect we have not heard the end of this given the time left in this current presidential election cycle and the attachment of issues around the application of the Insurrection Act to the likely candidate of the Republican Party. The traditional deference to political decision making at the heart of the act remains respected--the scope of judicial review would remain both unchanged and left to judicial development in case law.
The Statement of the ALI Project and identification of the Project's core of leadership follows below.
Principles for Insurrection Act Reform
April 8, 2024
April 8, 2024
THE PROJECT
At the invitation of the leadership of The American Law Institute, a group with a membership that
spans a range of legal and political views came together to consider possible reforms for the
Insurrection Act. Group members have varied backgrounds in constitutional law, national security
law, and military law, and in senior positions of the U.S. Government. All share the belief that
Congress should reform the Insurrection Act. After studying the Insurrection Act’s flaws, members
came to agreement on core principles that should guide this reform.
spans a range of legal and political views came together to consider possible reforms for the
Insurrection Act. Group members have varied backgrounds in constitutional law, national security
law, and military law, and in senior positions of the U.S. Government. All share the belief that
Congress should reform the Insurrection Act. After studying the Insurrection Act’s flaws, members
came to agreement on core principles that should guide this reform.
That the group came to a consensus on core principles does not mean that each member would apply
those principles in the same way in shaping the details of reform legislation. But the group
unanimously agrees that Congress should reform the Insurrection Act as soon as possible and
proposes the following principles in an effort to contribute to a constitutionally sound bipartisan
consensus in Congress.
those principles in the same way in shaping the details of reform legislation. But the group
unanimously agrees that Congress should reform the Insurrection Act as soon as possible and
proposes the following principles in an effort to contribute to a constitutionally sound bipartisan
consensus in Congress.
BACKGROUND
The Insurrection Act authorizes the president to deploy U.S. armed forces and the militia inside the
United States to meet various threats to federal and state authority. See 10 U.S.C. §§ 251-55. These
provisions can be traced to the 1790s and incorporate numerous intervening amendments.
Several provisions of the Constitution frame the Insurrection Act and any reform of the Act. They
include:
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There has been a need from the beginning of the nation for armed forces to be available in extreme
cases to respond to serious domestic threats and harms to public safety and security. There has also
long been a concern about the use of such forces in this context. U.S. military officials past and present
have been wary of involvement by the federal armed forces in policing their own citizens. Others have
cited dangers to citizens’ rights and state sovereignty.
United States to meet various threats to federal and state authority. See 10 U.S.C. §§ 251-55. These
provisions can be traced to the 1790s and incorporate numerous intervening amendments.
Several provisions of the Constitution frame the Insurrection Act and any reform of the Act. They
include:
• “The Congress shall have Power . . . To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States[;] . . . [and] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” U.S. CONST. art. I, § 8, cl. 14-16, 18.
• “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. CONST. art. I, § 9, cl. 2.
• “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States[.]” U.S. CONST. art. II, § 2, cl. 1.
• “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the
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Executive (when the Legislature cannot be convened) against domestic Violence.” U.S. CONST.art. IV, § 4.
• “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . . The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” U.S. CONST. amend. XIV, §§ 1, 5.
There has been a need from the beginning of the nation for armed forces to be available in extreme
cases to respond to serious domestic threats and harms to public safety and security. There has also
long been a concern about the use of such forces in this context. U.S. military officials past and present
have been wary of involvement by the federal armed forces in policing their own citizens. Others have
cited dangers to citizens’ rights and state sovereignty.
The Posse Comitatus Act of 1878 provides an important limitation on the use of armed forces to
execute the laws. That statute today provides: “Whoever, except in cases and under circumstances
expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the
Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to
execute the laws shall be fined under this title or imprisoned not more than two years, or both.” 18
U.S.C. § 1385.
The Insurrection Act constitutes an express statutory authorization within the terms of the Posse
Comitatus Act. Presidents have several dozen times invoked the Insurrection Act to address major
outbreaks of violence and the imminent or actual collapse of federal or state law enforcement. Yet the
need for presidents to invoke the Insurrection Act today must be considered in light of the size and
capacity of modern law-enforcement agencies at the state and local level, as well as a large federal law-
enforcement capacity available to the president, which in 2020 stood at almost 137,000 federal officials
authorized to carry firearms, make arrests, or both.
Comitatus Act. Presidents have several dozen times invoked the Insurrection Act to address major
outbreaks of violence and the imminent or actual collapse of federal or state law enforcement. Yet the
need for presidents to invoke the Insurrection Act today must be considered in light of the size and
capacity of modern law-enforcement agencies at the state and local level, as well as a large federal law-
enforcement capacity available to the president, which in 2020 stood at almost 137,000 federal officials
authorized to carry firearms, make arrests, or both.
The Insurrection Act in its current form provides broad authority without sufficient checks and
balances. It is an old statute with vague triggers for the indefinite domestic use of military force. Some
of these triggers are expressed in antiquated language. And the Insurrection Act contemplates no role
for Congress in the use of the authorities under the Act even though the president receives those
authorities from Congress. These flaws in the Insurrection Act have been clear for a long time and
have prompted numerous proposals for reform.
balances. It is an old statute with vague triggers for the indefinite domestic use of military force. Some
of these triggers are expressed in antiquated language. And the Insurrection Act contemplates no role
for Congress in the use of the authorities under the Act even though the president receives those
authorities from Congress. These flaws in the Insurrection Act have been clear for a long time and
have prompted numerous proposals for reform.
PRINCIPLES TO GOVERN INSURRECTION ACT REFORM
A. The “Triggers” for the President’s Invocation of Authority Under the Insurrection Act
Two basic principles should guide reform of the Insurrection Act’s triggers of authority.
Two basic principles should guide reform of the Insurrection Act’s triggers of authority.
Eliminate Antiquated Terms
Under the Insurrection Act, a president’s authority to deploy U.S. troops turns on terms—including
unlawful “combinations,” “obstructions,” and “assemblages”—that lack settled contemporary
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meaning. The important purposes of the statute would be better served, the scope of presidential
authority would be clearer, and appropriate congressional oversight would be materially enhanced, if
reform of the law removed such terms.
unlawful “combinations,” “obstructions,” and “assemblages”—that lack settled contemporary
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meaning. The important purposes of the statute would be better served, the scope of presidential
authority would be clearer, and appropriate congressional oversight would be materially enhanced, if
reform of the law removed such terms.
Strengthen the Conditions for the Act’s Use
Where the president’s deployment of U.S. troops is authorized as a response to the collapse of state
or federal law enforcement, a reformed Insurrection Act should more clearly specify (i) the goal of
ensuring enforcement and (ii) the requirement that the deployment be necessary to protect public
safety and security. For example, the current authority to suppress “domestic violence” in 10 U.S.C.
§ 253 should be amended to make clear that the violence must be such that it overwhelms the capacity
of federal, state, and local authorities to protect public safety and security.
These strengthened conditions on the use of the Insurrection Act are consistent with, but also clarify,
the basis for well-recognized past invocations of the Act, such as those by Presidents Eisenhower and
Kennedy to achieve compliance with federal-court desegregation orders.
the basis for well-recognized past invocations of the Act, such as those by Presidents Eisenhower and
Kennedy to achieve compliance with federal-court desegregation orders.
B. Time Limits, Reporting, and Consultation
Several statutes require the president and other executive branch officials to consult with and report
to Congress on uses of force, covert operations, and other military or intelligence activities abroad.
See, e.g., 10 U.S.C. § 130f (sensitive military operations); 50 U.S.C. § 3093(b), (c) (covert actions); 50
U.S.C. § 3092(a) (intelligence activities other than covert action); 50 U.S.C. §§ 1542-43 (hostilities or
imminent hostilities by the armed forces). Congress has also imposed a time constraint on certain
presidential uses of the armed forces outside the United States, subject to subsequent congressional
approval. 50 U.S.C. §§ 1544-45.
to Congress on uses of force, covert operations, and other military or intelligence activities abroad.
See, e.g., 10 U.S.C. § 130f (sensitive military operations); 50 U.S.C. § 3093(b), (c) (covert actions); 50
U.S.C. § 3092(a) (intelligence activities other than covert action); 50 U.S.C. §§ 1542-43 (hostilities or
imminent hostilities by the armed forces). Congress has also imposed a time constraint on certain
presidential uses of the armed forces outside the United States, subject to subsequent congressional
approval. 50 U.S.C. §§ 1544-45.
Although the Insurrection Act is grounded in Congress’s power over the militia and war, the Act lacks
any analogous reporting or consultation requirements. It also lacks time limits on the deployment of
the armed forces or militia. From the perspective of democratic governance and constitutional
principle, the use of armed forces and the militia in the domestic sphere can be as significant as the
use of armed forces abroad. Congress in the exercise of its constitutional prerogatives should establish
analogous reporting and consultation requirements, and time-limit constraints, on presidential
deployments under the Insurrection Act.
any analogous reporting or consultation requirements. It also lacks time limits on the deployment of
the armed forces or militia. From the perspective of democratic governance and constitutional
principle, the use of armed forces and the militia in the domestic sphere can be as significant as the
use of armed forces abroad. Congress in the exercise of its constitutional prerogatives should establish
analogous reporting and consultation requirements, and time-limit constraints, on presidential
deployments under the Insurrection Act.
A reformed Insurrection Act should:
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C. Judicial Review
• Require the president to consult, prior to the deployment of troops, with the governor of any state into which troops will be deployed.
• Require the president to make findings on the need to invoke the Insurrection Act, and to report these findings to Congress, along with a summary of consultations with state authorities, within 24 hours of deployment.
• Establish a time limit on the president’s authority to deploy troops under the Insurrection Act. The time limit should not exceed 30 days absent renewed congressional authorization.
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• Establish a fast-track procedure for Congress to vote on renewal of presidential authority under the Insurrection Act.
C. Judicial Review
Insurrection Act reform should not include a provision for judicial review. Judicial review would
likely be available to address discrete issues under extant law, and the Supreme Court has made
clear the president’s invocation of the Act will receive significant deference. The constitutionally
guaranteed writ of habeas corpus remains available at all times.
GROUP MEMBERS
Bob Bauer (Co-Chair)
James W. Crawford III
Mary DeRosa
John Eisenberg
Courtney Simmons Elwood
Jack Goldsmith (Co-Chair)
Jeh Charles Johnson
Bruce MacDonald
Mark Martins
Michael B. Mukasey
Bob Bauer (Co-Chair)
James W. Crawford III
Mary DeRosa
John Eisenberg
Courtney Simmons Elwood
Jack Goldsmith (Co-Chair)
Jeh Charles Johnson
Bruce MacDonald
Mark Martins
Michael B. Mukasey
BIOGRAPHIES*
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--Bob Bauer is Professor of Practice and Distinguished Scholar in Residence at New York University School of Law. He served as White House Counsel (2009-2011), as Co-Chair of the Presidential Commission on Election Administration (2013-2014), and as Co-Chair of the Presidential Commission on the Supreme Court of the United States (2021).
--James W. Crawford III, Vice Admiral, JAGC, U.S. Navy (Retired), was appointed by President Obama as the 43rd Judge Advocate General of the Navy (2015-2018). He served thirty-four years of active duty that included service as the principal military legal counsel to the Secretary of the Navy and Chief of Naval Operations and as the Department of Defense Representative for Ocean Policy Affairs (REPOPA). From 2020 to 2023, he was president of Felician University, a Franciscan Catholic university in New Jersey.
--Mary DeRosa is a Professor from Practice at Georgetown University Law Center. She served as Deputy Counsel to the President and Legal Adviser to the National Security Council (2009-2011), as Chief Counsel for National Security for the Senate Judiciary Committee (2007-2009), as Legal Adviser and Deputy Legal Adviser to the National Security Council (1997-2000), and as Special Counsel to the General Counsel at the Department of Defense (1995-1997).
--John Eisenberg is a national-security and white-collar attorney. In the Trump Administration, he served as the Legal Advisor to the National Security Council, Assistant to the President, and Deputy Counsel to the President. In the George W. Bush Administration, he served as a Deputy Assistant Attorney General in the Office of Legal Counsel and as an Associate Deputy Attorney General in the Department of Justice. He was a partner at Kirkland & Ellis from 2009 until 2017.
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--Courtney Simmons Elwood served as General Counsel of the U.S. Central Intelligence Agency (2017-2021), and as Associate Counsel to the President, Deputy Counsel to the Vice President, and Deputy Chief of Staff and Counselor to the Attorney General (2001-2007).
Jack Goldsmith is the Learned Hand Professor at Harvard Law School. He served as Assistant
Attorney General, Office of Legal Counsel (2003-2004), and as Special Counsel to the General Counsel of the Department of Defense (2002-2003).
--Jeh Charles Johnson is a partner in the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP who previously served as Secretary of Homeland Security (2013-2017), General Counsel of the Department of Defense (2009-2012), General Counsel of the Department of the Air Force (1998-2001) and as an Assistant U.S. Attorney for the Southern District of New York (1989-1991).
--Bruce MacDonald is a retired United States Navy vice admiral who served as the 40th Judge
Advocate General of the United States Navy from July 2006 to August 2009. In March 2010, he was appointed to the Senior Executive Service by Secretary of Defense Robert Gates and served for three years as Convening Authority for the Office of Military Commissions.
Mark Martins is a retired Army brigadier general and a private practitioner of law in Washington, D.C. Before retirement from the military in 2021, he served in Kosovo (1999), Iraq (2003, 2004, 2006-2008), and Afghanistan (2009-2011), and as chief prosecutor for proceedings under the Military Commissions Act (2011-2021).
--Michael B. Mukasey served as a U.S. District Judge for the Southern District of New York (1988-2006) and as the 81st Attorney General of the United States (2007-2009).
* The views and opinions set forth herein are the personal views or opinions of the authors; they do not necessarily reflect the views or opinions of the law firm, university, or other entity with which they are associated.
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