The Insurrection Act In 2020

Though the protests surrounding police brutality have mostly de-escalated, the people of this country remember when, just last month, violence erupted in city streets nationwide, often ignited by police forces. As many took to the streets to protest racism in the wake of George Floyd’s murder, President Trump continually threatened and vilified those standing up for the nation’s ideals. In keeping with his animosity towards such protestors, Mr. Trump announced on June 1 that “if a city or a state refuses to take the actions necessary…I will deploy the United States military.” This would likely happen through the Insurrection Act of 1807, which grants the President authority to deploy military or armed services to states in select — but largely unclear — circumstances. The Insurrection Act also allows the President to use this power without approval from Congress, a strange contrast to Congressional war powers laid out in the Constitution. This harms the checks and balances of this nation, and grants the office of the President with undue and unregulated power. 

Several days after Mr. Trump’s inflaming statements, Senator Richard Blumenthal (D-CT) introduced the Curtailing Insurrection act Violations of Individuals’ Liberties (CIVIL) Act. This amendment to the Insurrection Act would require the President, Defense Secretary, and Attorney General to certify to Congress either of the governor’s inability or unwillingness to provide aid for such disasters. Additionally, it defines the circumstances in which the President may use the Insurrection Act, blocking them from using their powers to infringe on the rights of the people. The CIVIL Act is a necessary amendment that would protect the country from executive overreach, and must be adopted by Congress.

 

Historical Context

The Insurrection Act was signed in 1807 by Thomas Jefferson, but has since been amended several times, most significantly under President Lincoln; two amendments during his eight-year presidency expanded the act’s reach to permit the Civil War, then to enforce Reconstruction. Though a Congressional Service Report stated that presidents have used it on “dozens of occasions,” that frequency has waned in recent decades. Perhaps the most notable use was in 1957, when after the Arkansas National Guard refused to allow nine black students to enter Central High School, a then all-white school in Little Rock, federal troops led them into the building at the orders of President Eisenhower. This is an example of exactly how the Insurrection Act should be utilized: to uphold the law and protect civil rights. Additionally, when protests erupted in 1992 after four police officers were acquitted in the horrific beating of Rodney King, George H.W. Bush used it to send federal troops into Los Angeles to abate riots. However, this action was taken only at the California governor’s request. These moments in our history provide insight into how the Insurrection Act can be used reasonably and in keeping with our balance of power. But this act also leaves room for improper conduct that threatens the structure of American governance.

 

Enabling Of Oppression

The Insurrection Act has been ambiguous since its adoption, leaving a concerning amount up to interpretation and potentially enabling executive overreach. The original text states that “in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual states or territories,” the President may legally call upon the military to suppress such insurrections, provided all relevant legal prerequisites have been followed. Because of the vague circumstances provided, there is no explicit measure preventing the President from harnessing this act to inhibit civil rights or take unjust action against the people. This is a dangerous legislative oversight that leaves America vulnerable to tyranny and oppression.

Even more frightening is the absence of checks and balances, which America relies on to limit the power of a single branch of government. Under Article One of the Constitution, Congress is given the sole ability to declare war, balancing out the President’s command of the Armed Forces. However, no power is given to Congress in relation to the Insurrection Act, despite the fact that military action taken in the United States holds equal weight to such action taken elsewhere. Furthermore, this movement requires no request from state governors, and though in some cases the Insurrection Act is needed because the governor refuses to enforce a law, no proof of the governor’s insubordination is required before the executive branch may infringe on the rights of the states. Granting the President the power to independently deploy federal troops across America allows them to exert undue influence over the states and encroaches on the equality and stability of our three-branch government. 

 

Why The CIVIL Act Is The Solution

The CIVIL Act would resolve these glaring issues, protecting America from such atrocities. This comprehensive amendment would specify the circumstances in which the Insurrection Act may be used, ensuring it is only used to defend the civil rights of America. Given that the Insurrection Act provides little clarity on when presidents may use it, this is an imperative stipulation that stops them from using this power to oppress Americans. It would also require the President, Secretary of Defense, and Attorney General to prove to Congress that the governor requested military assistance. In cases when military action would be taken against the wishes of the governor, the President, Defense Secretary, and Attorney General must jointly certify the governor’s refusal or inability to provide aid. They must also, in all instances, provide information detailing the need for the usage of the military and what activities they would be performing. All of this is crucial because it blocks the President from deploying troops under a pretext of a rational cause, then abuse their power and cause unnecessary violence. Should the legislative branch grant their permission, the condonation would automatically expire after a fourteen-day period, absent a renewal by Congress. This is incredibly important, since it prevents the President from allowing the military to remain in states or territories after it has become unreasonable to do so.

The CIVIL Act also ensures an efficient avenue for those affected by the military presence. If any person, group, or state wishes to take legal action against the federal government for injury or reasonable fear of it, the courts will be obliged to expedite the civil action to “the greatest possible extent.” This provides greater assurance that civilians harmed by the arrival of the Armed Forces have a permissible and relatively feasible route to hold their perpetrators accountable.

 

Focus Has Moved, But The Law Hasn’t

Currently, the Insurrection Act of 1807 provides an excessive amount of executive power, destabilizing the balance of America’s three branches of federal government. The CIVIL Act guarantees important limitations on that power by ensuring that its use will be used to uphold the rights of all in America and requiring Congressional approval before the President may take action. These preconditions align with the Constitutional delegation of powers, the Bill of Rights, and many other amendments that are central to American beliefs of equality and justice. Without this act, the President may use the Insurrection Act without the consensus of the representatives of the people for purposes that violate the values our country was founded on. This is why the CIVIL Act is an indispensable amendment that can safeguard America from tyranny, and Congress must adopt it immediately.

In 2020, abuses of presidential power have been partially accepted by many; President Trump has dulled our outrage by relentlessly demanding it. But precedent and law matter, even when those in power show it complete disregard. Future presidents may see the Insurrection Act as an unjust but accepted way to ignore the pleas of governors, and as a path to spread hate and violence across the country. So though Mr. Trump has yet to officially use the Insurrection Act, and though the momentary anger around this law has largely dissipated, this discussion is far from over, and the CIVIL Act is ready and waiting to mend one flawed piece of this fractured, evolving country.

Disclaimer: The views and opinions expressed in this article are those of the author and/or student and do not necessarily reflect the official policy or position of United 4 Social Change Inc., its board members, or officers.
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