Bauer and Goldsmith Outline the Insurrection Act’s Risks and Paths to Reform
In a new post on their Executive Functions Substack, Bob Bauer and Jack Goldsmith provide timely background on the Insurrection Act and explain why its current structure poses serious risks. Their post, “Trump Threatens to Invoke the Insurrection Act,” follows President Trump’s statement that he may “institute the INSURRECTION ACT,” and collects the authors’ key writings on the Act, its dangers, and reform possibilities.
Bauer and Goldsmith emphasize a core point that has animated legal and policy debates for years: while the nation has long recognized the need for armed forces to respond in extreme domestic emergencies, there has also been sustained concern about the dangers of domestic military involvement, particularly the risks to civil liberties, democratic governance, and state sovereignty.
As they note, the Insurrection Act operates as an express statutory exception to the Posse Comitatus Act, which generally limits the use of the armed forces to execute the laws. Yet the Insurrection Act, in its current form, provides broad authority without adequate modern checks and balances. It relies on vague and antiquated statutory triggers, contemplates no meaningful role for Congress once invoked, and lacks time limits and consultation requirements that are commonplace in other contexts involving the use of force.
The post also highlights a set of reform principles developed through an American Law Institute initiative led by Bauer and Goldsmith in Spring 2024: Principles for Insurrection Act Reform. Those Principles reflect a careful, nonpartisan effort to modernize the statute while preserving its ability to function in the truly extraordinary situations for which it was intended.
Among the most significant reform ideas emphasized in the Principles are:
- Eliminating antiquated terms that lack settled contemporary meaning
- Strengthening conditions for invocation so deployment is limited to circumstances where violence overwhelms the capacity of federal, state, and local authorities to protect public safety and security
- Requiring consultation and reporting to Congress, including findings and reporting within 24 hours of deployment
- Establishing time limits on deployments (no more than 30 days absent renewed congressional authorization) and a fast-track congressional renewal process
- Confirming that reform need not and should not include a new provision for judicial review