The Lawfare Podcast: Jack Goldsmith and Bob Bauer on Reforming the Insurrection Act

[Audio Excerpt]

Bob Bauer

Speaking of the Insurrection Acts as an authorization for extreme cases, you would want that concept of regular law enforcement being overwhelmed to govern the president's use of the term “domestic violence” as a source of authority under the statute. Right now, it is a term that appears in the statute untethered to any definition. And so, a protest that gets out of control for three hours could arguably, for a president so disposed, enable him or her, just on the face of the statute, to invoke the act and to deploy troops.

[Main Podcast]

Hyemin Han

I'm Hyemin Han, Associate Editor at Lawfare. This is the Lawfare Podcast for April 12^th, 2024. The Insurrection Act is a provision in the Constitution that allows the president to deploy the U.S. military for domestic law enforcement. It's been invoked dozens of times by presidents to respond to crises in the over 230 years that it's been around. But it hasn't been reformed in centuries. In recent years, the Insurrection Act has come back into public focus because of its implication in a number of domestic crises, prompting a renewed conversation about whether it's finally time to curb the sweeping powers afforded to the executive in this unique federal law.

On April 8^th, the American Law Institute released a set of principles for Insurrection Act reform, prepared by a group of 10 individuals with backgrounds in constitutional law, national security law, and military law. The co-chairs of this group were Jack Goldsmith, Lawfare Co-Founder and Harvard Law School Professor, and Bob Bauer, Professor of Practice and Distinguished Scholar in Residence at New York University School of Law. They joined me to talk about the history of the Insurrection Act, to parse out the recommendations the American Law Institute is making for reform, and to make the case for reforming the Act in 2024.

It's the Lawfare podcast, April 12^th: Jack Goldsmith and Bob Bauer on Reforming the Insurrection Act.

To get everyone up to speed, Jack, can you review for us what the Insurrection Act is and what it currently allows the president to do?

Jack Goldsmith

Sure. The Insurrection Act is a statute that has its origins in the 1790s. And what it basically does is, in a variety of ways, authorizes the president to use the militia or the armed forces in the domestic sphere to address a whole array of vaguely worded issues and problems, mainly around violence, breakdowns of state or federal authority. The statute is grounded in Article I of the Constitution, which gives Congress the power to confer these authorities on the President. The 1790 statute has been amended many times in the 19th century. It has not been amended in a long time. The statute today comes in, I think it's five provisions in the U.S. Code, and it basically authorizes the president to use the militia or the armed forces in an array of very broadly worded circumstances, and that's the essential problem.

Hymein Han

Can you give us a quick history of why the Insurrection Act was created initially and why you think lawmakers in the 1800s were comfortable with allowing this act to contain such sweeping executive powers?

Jack Goldsmith

Yeah, the power was actually conferred in the 1790s. And the reason is, it's an extremely important authority for the federal government to have. The Constitution guarantees that the U.S. government will protect the states from invasion and from domestic violence, and it specifically creates, the Constitution creates, an executive power, an independent and powerful executive, which the federal government didn't have under the Articles of Confederation. And as we learned under the Articles of Confederation, there's a need to ensure that federal law is enforced, and you cannot rely on the subunits to do that. And there's a need to ensure that the federal government can maintain order in the country. So, the Constitution contemplates this. Importantly, it gives the power to Congress. Congress is given the power to provide for calling forth the militia, to execute the laws of the Union, to suppress insurrections and repel invasions. So Congress holds the power in the first instance. The President is the commander in chief of the militia when it's called up.

But basically, the answer to your question is that they conferred this authority because there is a need to have this authority to maintain order in extreme circumstances. And so very early on, Congress exercised this authority under the constitution and gave the president power to call up the militia—it was initially limited just to the militia, not to the armed forces that came in the 19th century. Early on gave the president the authority to call up the militia to suppress rebellions and insurrections and to ensure that federal law was enforced. And it revised that authority several times in the 19^th century. It actually expanded it over the course of the 19^th century.

But we live in an era now in the 21^st century where we worry about abuse of this power. And that is exactly right, because the statute is extraordinarily broad. But we should remember that there are important uses for it. And it was written into the Constitution, and it was thought to be necessary very early on.

Hymein Han

So in the past 232 years, presidents have invoked the Insurrection Act to address approximately 30 crises, according to some estimates. The last time it was invoked was in 1992 when President George H.W. Bush sent assistance to California to address the L.A. riots at the Governor of California's request. Bob or Jack, can you talk about how the Insurrection Act has been used over time, whether you see any trends, and whether there might have been times when it was actually used in the right way?

Bob Bauer

Certainly, one of the non-controversial, widely accepted use of the Insurrection Act was its invocation by Presidents Kennedy and Eisenhower to enforce federal court desegregation orders. And those were circumstances in which the question was whether or not federal law would be respected and properly enforced at the state level. Those problems can arise, by the way, if there's a collapse of state as well as federal enforcement, but that is certainly one storied use of the Insurrection Act.

I don't know that I could say there's a pattern over time. What has happened recently, of course, is attention has been directed less to the historical practice and potentially to breaks in the historical practice, a radically different direction. And that certainly is what has focused attention on the statute and caused this group to assemble to ask the fundamental question. It has laid there for presidential use over time, not provoked the sort of controversy that it has provoked recently, but it always had the capacity to do so. It was always structured in a way that could invite just that kind of discord, disagreement, and fear. And so now would be the time to turn to it, even though reform of it would have been entirely appropriate and called for a long time ago.

Jack Goldsmith

If I could just add to that, you asked about times in which it's been invoked the right way and Bob gave you some examples. But that's actually part of the problem. It's very hard. What counts as the right way to invoke the Insurrection Act? It's needed as a last resort, break-the-glass use of federal force when state and federal authority is broken down or there's extreme violence. But there's sometimes disagreement about what constitutes that. And the Insurrection Act gives the president extraordinary discretion in determining what counts as the right way to use the statute.

And so this is why—we can get into this more later if you want—this is why we've proposed two important changes. One is to tighten up the circumstances in which the president can use these authorities. But more importantly than that, because there's often going to be disagreement about, as you put it, the right way and what are the right circumstances. And that's a judgment call because any president's use of military force in the domestic sphere is fraught, no matter how great the violence, presidents hesitate to use it as a last resort. And the internal Justice Department procedures on when to use the Insurrection Act emphasize that it's a really last resort thing because it's not something presidents typically like to do. It's not something the military likes to do, typically. But it's just contested about when exactly is that break-the-glass moment? And that's why the other reform is so important. And that is to put time limits on it. You don't want it to get out of control. You don't want a president to be able to use this in an out-of-control way.

And right now, the statute, in addition to being very broadly worded in the circumstances in which it can be used also has no time limits, no consultation or reporting requirements. Congress has totally cut itself out of any part of the process. It's just given the president this very broadly worded loaded gun.

Hyemin Han

Yes, definitely want to break down each of your recommended principles a bit later. But before we do that, I'd like to briefly discuss the impetus for the resurgence of debate on Insurrection Act reform. There are a number of concerning examples that point to the need for implicating former President Donald Trump, which has gotten a lot of media attention, like his regret that he didn't send troops to quell Black Lives Matter protests after the murder of George Floyd. Or maybe Jack, you could talk about the Texas border dispute and how it's implicating the Insurrection Act in a way that you argued in Lawfare recently demonstrates why there should be bipartisan support for Insurrection Act reform.

Bob Bauer

I'm going to make one top line comment here just in response to that and say, there has been a lot of discussion. It's been organized around reports of interest by Trump, interest by advisors of Trump, planning for a potential future Trump administration that has included discussions of the Insurrection Act, all of this on the public record or reported. But I do want to emphasize as we go into that, that it's really important then to return to the basic problem, which is, like the Electoral Count Act, which was fortunately reformed at the end of 2022, this statute has always been an invitation, at best to misunderstanding and misapplication, and at worst to outright abuse.

And so one of the things that we tried to do with our American Law Institute working group was to bring in a group of people on a bipartisan basis, which included former members of the Trump administration, to talk about how this was a problem, granted one that is receiving renewed focus because of Trump, but it's a problem period on its own terms. It's unfortunate that we have to wait until the problem develops, a misapplication or an abuse develops, or seems imminent in the development before we actually turn to these reform efforts, but that happens. So now is the opportunity to take the bipartisan action, even though the immediate impetus for it has been concerns about the way Trump and some of his advisors view the potential uses of the act. So I just wanted to say that at the top. And then I know Jack will want to discuss some of the specifics.

Jack Goldsmith

I'll just add and support that point by using, as you suggested, the Texas border example. So everybody knows about the dispute down in Texas, about the laying of the razor wire on the Rio Grande and whether or not state officials were going to allow federal officials to come and remove that. And there seemed like there was going to be something of a standoff between federal and state authority.

That's simmered down now, but at the time there were people, members of the Democratic Party, were urging President Biden to federalize the national guard that the Texas governor was using to carry out these, some of these tasks. And it was conceivable at the time that President Biden might've used the insurrection Act to respond to what seemed like it might've become a brazen disregard of federal law enforcement. Again, it's not a hundred percent clear exactly what the law is on this. But it doesn't matter.

It's the context that explains what's at stake here. Because on the one hand, this example shows the importance of the Insurrection Act. Presidents need ultimate authority to ensure that federal law is enforced if there's serious disregard of the law and serious disregard of federal authority. This is what happened in the examples Bob was talking about during the civil rights era in the ‘50s and ‘60s, and there may still be a need for that today.

On the other hand, the Texas situation also shows the dangers of the Insurrection Act, because President Biden could have brought the military down there, he still might, we don't know. He's given no indication of it. Let me be clear, although it's been suggested that he do it. He could have brought the military into that situation. At that point, the stakes on the other side in terms of, states’ rights and state prerogatives vis a vis the federal government and the dangers of introducing the military to police their own co-citizens of the United States and the potential politicization of the military becomes clear. And the nice thing about that example is that it shows that both sides have a stake in ensuring that this statute not be abused. Again, I'm just using that as an example. I'm not suggesting that this was going to happen or that it's being planned, but it does highlight, for Republicans who think that this is an anti-Trump measure, it highlights the fact that any president can use this and that there are considerations on the other side that need to be taken into account by both sides of the aisle.

Hyemin Han

Would you say that it was always a mistake for the Insurrection Act to have been created in this form?

Jack Goldsmith

No. And I want to be clear about this. What's today the Insurrection Act was, part of, I think the first statute, I think it was called the Calling Fourth Act, was 1792. The Constitution contemplates the use of the militia to fight insurrection and rebellion. And there's clearly a need. This is one of the purposes of the Constitution, was to ensure that the federal government could—this is why we created an executive branch, this is why Congress was given the authority to confer this power on the executive branch. There are times when federal law needs to be vindicated and federal law enforcement needs to be vindicated. And when violence can get out of hand such that there needs to be order and there's a legitimate use for this authority.

So we're not against the Insurrection Act per se. Our central concern is that the statute is out of whack. It lacks any essential checks and balances. And it actually had more checks and balances in the 1790s than it had now. One use of the Insurrection Act back in the original statute I was talking about, actually had a time limit on it. But that went away over the years. And so the problem is not that there shouldn't be an Insurrection Act. The problem is that it's a potentially dangerous authority that needs to be subject to checks and balances.

Bob Bauer

I would just add two points to that if I could. One is, when we talk about federal law enforcement, and this is reflected in our principles, we're talking about circumstances extreme enough that you could characterize the lapse in law enforcement as a collapse of law enforcement. And it is tied in our principles to the fundamental need to bring the federal government in this way to protect public safety and security. Our thought is, yes, there may be a need for it, but it needs to be defined. The extreme cases, the last resort cases in which it's used, need to be more clearly defined. And I do want to bring into the conversation that we have a statute, the Posse Comitatus statute, that very specifically prohibits the use of the military, with the naming of all the component forces, to execute the laws of the United States, except as authorized by Congress.

Jack Goldsmith

Or the Constitution.

Bob Bauer

Or the Constitution. And so the Insurrection Act is an important response. It constitutes that authorization, but precisely because it's against this general prescription that it needs to be crafted in a fashion that so far it hasn't been that provides for clear terms on which the president would invoke the authority and meaningful constraints on the way that authority is ultimately exercised.

Hyemin Han

Yeah, I'm glad you brought up the Posse Comitatus Act. So essentially, it's, in your view, an emergency power forged by an acknowledgment that the commander in chief may very well need to move quickly to defend the nation in moments of crisis but is balanced by a tradition in our history that views military interference in civilian governance as dangerous. And so your reforms are trying to get rid of what is unbound presidential power, but not say that we don't need it at all.

Jack Goldsmith

Exactly right. Well stated.

Bob Bauer

Absolutely.

Hyemin Han

So moving now to your reform proposals, your first principle is about reforming the triggers for the president's invocation of the authority. One of your subpoints in this principle is to eliminate the antiquated terms we don't use anymore, “combinations” being one of them. The second subpoint you have is to strengthen the conditions for the Act's use. On this latter one, can you talk a bit more specifically on what Congress might need to do to define the conditions and how deeply they should go into it? You cite “the suppression of domestic violence” as a term that needs to be better defined, for instance. Since that's deeply debated, what are the right thresholds here?

Bob Bauer

So you wouldn't want a statute that authorizes a president whenever he or she considers it necessary to use troops to address any outbreak of disorder, a riot of whatever duration, with whatever level of destructiveness. You would want to be able to establish, and that's what we propose in the principles, that normal federal and state law enforcement has been overwhelmed. It simply cannot address the level of violence that has broken out. And again, speaking of the Insurrection Acts as an authorization for extreme cases, you would want that concept of regular law enforcement being overwhelmed to govern the president's use of the term “domestic violence” as a source of authority under the statute. Right now, it is a term that appears in the statute untethered to any definition. And so, a protest that gets out of control for three hours could arguably, for a president so disposed, enable him or her, just on the face of the statute, to invoke the act and to deploy troops. We don't want that, obviously.

And so that's an example of clarifying, and by clarifying, strengthening the condition for the invocation of authority, and that's an example we very purposefully included. It's an important one.

Jack Goldsmith

So these are just what the label says, their principles. This is not a draft statute. We got together a group of bipartisan experts who have very different views on law and policy, very different experiences in government and elsewhere. And so our aim wasn't to go through and say, fix this word, fix this principle, etc. It was rather to just focus on the areas that we thought needed focus and attention, to suggest guideposts to reforming the law, to give some examples. But our group did not get down into the detail on determining every provision that needed tightening up.

And the truth is that there are many different ways that useful reform could take place. And we think that—we're going to go through some of the other principles—we think that the basic principles that we outlined are the right approach. But within that approach, there are things one could debate about, terms that one might want to define and not define. But the basic idea on the one we're talking about now is that these very broad triggers and the very broad conditions of use we think need to be narrowed and tightened.

Hyemin Han

I do have a follow up specifically on the definitions here, just because in his petition for writ of cert for his Section 3 disqualification case in front of the Supreme Court, former President Trump argued that the Jan 6 attack on the Capitol wasn't an insurrection, trying to compare it to, again, the Black Lives Matter protests and other civil disruptions that happened in the past. And actually, a number of amicus briefs submitted on Trump's behalf also tried to make this comparison.

Given that there's such substantial disagreement on what constitutes an insurrection in 2024, would it be helpful, in your view, for Congress as a part of Insurrection Act reform to actually try to dig into defining what would rise to the level of insurrection as a part of the statute?

Bob Bauer

It could do but there's another approach. And by the way, that's not to say there aren't good potential definitions of both insurrection and rebellion. But there's a process under our principles that commits this to requirement that the president make findings, that is to say, give reasons why the deployment of troops is necessary, give reasons why he considers the outbreak of violence to satisfy the definition of an insurrection or a rebellion against government authority. And there is a congressional oversight provided for which includes a time limit that can only be extended by congressional authorization, renewal voted by Congress.

And if it becomes difficult for anybody to arrive at an acceptable definition of what constitutes an insurrection, there is nonetheless a process that allows that question to be debated. And there will be potentially some very loud voices and a debate. Imagine for example, a state within which troops are deployed is going to have something to say about federal troops in its midst, on its streets, patrolling its streets. And that's one of the reasons why we provided that any state within which troops would be deployed under these principles would have to be consulted by the president. And the fruits of that consultation would have to be reported by Congress.

So that process commits this question to, if you will, democratic deliberation with Congress fully involved. And we can talk about judicial review later and the potentially limited role the courts may play in that process. And that may be an alternative, an acceptable alternative, to trying to arrive at a decision about precisely how to word a definition of insurrection.

Jack Goldsmith

And let me emphasize here that I am speaking for myself and not for anyone in the American Law Institute group, because although everyone signed on to the principles, I'm going into a level of depth now that is not reflected in the principles.

In answering the question whether this is an opportunity to tighten or define insurrection, there are definitions of insurrection around in federal law. The problem with reforming the Insurrection Act is that it has lots of overlapping triggers. So it's not necessarily always the case, but it's often going to be the case that an insurrection is going to be accompanied by violence that would independently justify the use of the Insurrection Act. And the word “rebellion” also may be difficult to define and as it relates to insurrection.

And I worry that if there was an effort now—we think the statute should be passed this year. And I worry that if there's an effort to try to define insurrection that that will, because it's such a contested issue and so difficult, as you were saying earlier in terms of what the definition should be, I worry that would get in the way of achieving the essence of reform, which needs to be done, which is just tightening up the terms and especially getting Congress into the game in terms of checks and balances. So I'm not sure that it would be worth the effort in terms of its impact on reform to try to spend a lot of time defining what insurrection means. I think it might distract from the goal of achieving reform as soon as possible. I don't know if Bob agrees with that.

Bob Bauer

That's one of the reasons I suggested that we might take comfort in the process that's set up here that might work better to resolve disagreements and lead to reform than taking on complicated definitions. We didn't think it was all that complicated to try to give at least some sense of what constituted the kind of domestic violence that would justify implication of authority under the act. I think that when you get to something like “insurrection” or “rebellion,” and certainly because we think they ought to be deleted, “assemblage,” “combination,” “obstruction,” the task becomes much harder.

Hyemin Han

In Martin v. Mott, the Supreme Court decided that the president alone would decide what constitutes an insurrection and that his determinations are conclusive. So is the status quo, even after your proposed reforms, that the courts will give deference to the executive on this question? And is the main difference that the reporting requirements to Congress might allow for more public-facing debate on whether the president was right about it?

Jack Goldsmith

Yes. I do believe that there can be judicial review of the statute under certain circumstances. And there's a way of reading Martin v. Mott, the case you alluded to, to say that the president gets deference on the question of the trigger for the emergency. Some people read it to mean it's a political question and that the courts can't even adjudicate the issue. The better reading of Martin v. Mott in light of subsequent cases is that the president gets significant deference here, but that judicial review is not completely precluded.

But I think there's no doubt that in these circumstances, the president would get significant discretion on his invocation of the triggers. There's some later cases that suggest—again, it's in the context of governors, not the president—but it's still suggestive that if it's pretty clearly bad faith, in the invocation of the triggers, the president or the executive might not get deference. So there's a little bit of uncertainty on the scope of deference to the president. But yes, the president will get deference on this point, on the triggers.

And that just underscores that the triggers need to be tightened. And especially again, the crucial element of this reform are the limitations, the self-executing limitations on the president's authority. Now there are none. And my own view, and again, I'm speaking for myself, is that tightening up the conditions of its use and the triggers for its use are very important in making the statute more rigorous. But at the end of the day, that's going to be hard to police because you have to give the president some discretion in emergencies. That's what the executive is there for. And we're trying to steer a middle course. So the ultimate check here, I think, is procedural.

Bob Bauer

I was going to say, and by the way, I'm here, I'm speaking entirely for myself, Jack may disagree with me. I think that the procedural framework, like the one that we're proposing, if it were implemented, would, to the extent that courts become involved, help the courts pick out the bad faith case. Congress would have asserted an interest in how the statute was worded, would have responded to the risk of presidential abuse. And take, for example, presidential findings. Assuming the president doesn't take the findings seriously, the accounting to Congress is bare bones and not credible in light of facts on the ground. I think that framework as one within which a case could go to the court, would I think help identify, help motivate, the courts to act as a stopgap against bad faith cases. And I do think bad faith cases where the facts are graphic and revealing the bad faith could well be the basis for judicial intervention in a jurisprudence that otherwise affords the president substantial deference.

Hyemin Han

So now I'd like to move to your second bucket of principles, which you've titled Time Limits, Reporting, and Consultation. Can you talk through what reforms you're suggesting here?

Jack Goldsmith

Sure. One of the first points that the principles make are that with regard to the use of force abroad—the use of force, covert operations, other military activities—with regard to the President's use of armed forces abroad, there are consultation and reporting requirements. This is true of the covert action statute, sensitive military operations. It's true of the War Powers Resolution. And there's none of that in the Insurrection Act. There's no reporting requirement, no consultation requirement at all. Also, of course, in the War Powers Resolution, there is, again, for use of force abroad, there is a time limitation on the president's use of force.

One of our fundamental points is that the use of the military force in the domestic realm is no less important and maybe, arguably, more consequential than the use of force abroad. And yet, in this context, in the domestic context, we have none of the procedural checks that we see in the foreign context. So our big picture point here is that some of those procedural and time limit checks should be imported into the domestic, into the Insurrection Act context.

So against that background, we have four specific proposals about how the Insurrection Act should mirror the procedural limitations and conditions in the use of force abroad context. Do you want me to go through those four?

Hyemin Han

Yes, please.

Jack Goldsmith

So the first one is that the president needs to consult, prior to the deployment of troop, with the governor of any state into which the troops will be deployed. This is designed to ensure that there's a real need, ensure that the state's concerns about the use of troops are brought to the president's attention. That's the first one.

The second one is that the president needs to make findings on the need to invoke the Insurrection Act and must report these findings to Congress, along with a summary of the consultations with state authorities. This needs to happen within 24 hours of deployment. So Congress needs to be involved from the very beginning and the president needs to commit to why he's using these authorities.

Third, we think that there needs to be a time limit on the president's authority to deploy troops under the Insurrection Act. We didn't reach a specific number about how long that time limit should be, but we did conclude that it should not exceed 30 days, absent renewed congressional authorization. So this is the central reform, in my opinion. The president's authority to use the Insurrection Act, once invoked, runs out after a certain period of time. We propose no more than 30 days, but again, that's a matter of one could debate what the length of it should be exactly.

And fourth, we suggest, again, following some other statutes in this area, that Congress should establish a fast-track procedure so that it can avoid the procedural hurdles within Congress and get to a vote very quickly on renewing the president's authority under the Insurrection Act. So those are the four basic tenets of the kind of procedural part of the reform.

Hyemin Han

One follow-up I have on your first subpoint in this section about the requirement that the president should consult the governor of any state into which the troops will be deployed prior to deployment. Since D.C. isn't a state and the president has unilateral control over the deployment of the National Guard in D.C., do you think that reform should include limits on presidential power in this context? And if so, what's the best way to structure that reform?

Jack Goldsmith

Yes, so here I'm going to speak very generally and for myself because the ALI principles that Bob and I were involved in did not address this issue.

As you said, there's a potential loophole with regard to the District of Columbia. There's a very small National Guard unit in the District of Columbia, and it ultimately is under the control of the president. And so, just very briefly and generally, President Trump in the summer of 2020, when there were violent protests in Washington, invited in National Guards from other states into the District of Columbia. And he invited them in a way that they weren't fully federalized, which meant that he could use them under a statute under Title 32, that he could deploy them in ways that didn't implicate the Posse Comitatus statute and didn't require the implication of the Insurrection Act.

So without getting into more details, there is a potential loophole here that needs to be filled. It's difficult to know how to fill it. There are many ways it can be done, and we didn't get into that in our principles, and I don't have strong views. I do think the problem needs to be fixed. There was a proposal in an NDAA a couple of years ago to close the loophole, and the Biden administration opposed it. So it's a complicated issue. But let me just say that, in general, there is a potential loophole for the District of Columbia that gives a president a way to potentially circumvent the need to invoke the Insurrection Act to satisfy the Posse Comitatus statute. And that needs to be fixed.

Hyemin Han

Do you know, perchance, why the Biden administration pushed back on reform on this?

Jack Goldsmith

So I'll give you the short answer, but it won't make much sense without more detail. Because they were opposed, as I recall, to the way the bill was structured was putting a limit on whether the president could call in troops from others, National Guard troops, from one state to another under certain circumstances without the receiving governor's consent. And the Biden administration opposed that part of it. That's what I recall. Again, this is a very complicated area that it would take a lot more explanation to even make clear what I just said. But that was the reason they opposed it.

Hyemin Han

So speaking of loopholes, as a brief follow-up, can the president currently use the federalized National Guard without invoking the Insurrection Act?

Jack Goldsmith

So, yes. There are other uses for the National Guard not specified in the Insurrection Act, and I don't have them all at my fingertips right now, but there are other reasons that the National Guard can be used. There are other authorities for the use of the National Guard if the President federalized them. But the important point for Insurrection Act reform is that there's no other way that the president can use the National Guard or the U.S. military to enforce law other than the Insurrection Act. And that is because, to go back to something we spoke of earlier, the Posse Comitatus statute says that federal armed forces cannot be used to enforce the law unless authorized by statute. And the Insurrection Act is the statute.

Now, there may be imaginative uses of the National Guard. In fact, this is what happened in the summer of 2020 in the District of Columbia. There might be imaginative uses of the National Guard in ways that might be dangerous, that don't rise to law enforcement. But I haven't studied that problem, so I really don't know what the scale or scope of that, of those concerns would be.

Hyemin Han

So Jack, you said that among the four, and in general, one of the biggest and most important reforms is this time limit and reporting requirement. And you likened it also to other examples of reporting requirements we have, for instance, in the War Powers Resolution. But given how toothless, unfortunately, the War Powers Resolution reporting requirements have proven to be, what do you think will be the value out of adding similar reporting requirements to a reformed Insurrection Act? And is there anything we can learn from WPR reporting process that can help shape a better insurrection act?

Jack Goldsmith

Sure. I'm not sure that the reporting requirements under the War Powers Resolution have been toothless. The War Powers Resolution is not the best. I agree with you a hundred percent, and I've written this a lot on Lawfare. Is not the best model perhaps, because in some respects it has been exploited. Its ambiguities and loopholes have been exploited by the president. But I disagree that reporting requirements aren't important. And we cite not just the War Powers Resolution, but the reporting requirements for covert actions, the reporting requirements for sensitive operations. These are actually vital means of informing Congress of what's going on and keeping them in the loop and making them responsible. And those reporting requirements are often bases for Congress to push back and to seek more information.

And the War Powers Resolution on the whole, that statute has not been a terribly successful statute in preventing the president from using force abroad. That has a lot to do with some of the special loopholes in that statute. But we're in a much better place with the president having a duty to report the uses of force and give explanations to it. It may seem like nothing, but it's a heck of a lot more than if he weren't doing it, and it gives Congress information it might not have. And it allows Congress to engage in the debate.

And I also suspect very strongly that while Congress is happy, many members of Congress over the years have been happy not to take responsibility for presidential action abroad, I don't think members of Congress are going to be able to hide for presidential uses of the military in the domestic sphere. So I think the dynamic on reporting and consultation will be much different in the domestic sphere. Bob, I don't know if you agree with that point.

Bob Bauer

Oh, I agree strongly. I think this is a case where the type of form we're talking about engages with a completely different domestic political dynamic. As Jack said, members of Congress, are not always happy to defer to the president. I think the president has the upper political hand in the deployment of troops overseas, on appeals to questions like national interest or national security. Whereas a domestic deployment, certainly within the state in which the troops are deployed, but more generally when tanks are rolling down American streets, provokes a very different kind of debate, and it brings into play pressures that presidents just by and large have not faced under the War Powers Resolution. One of the reasons the War Powers Resolution has not functioned the way those who supported its enactment and since have hoped it would, is that the president really does have the political upper hand, and therefore Congress can complain, but it won't take its complaints all that far. There are some exceptions to that, but that's generally been the case.

I think this is quite different. And I think the public reaction to this, which is, of course, one way in which members of Congress will become engaged. That is to say, when they hear from their constituents at a high decibel level, the congressional response is going to be conditioned by a strong public response, which I think is quite different when you have domestic deployment rather than an overseas military venture.

Hyemin Han

I just want to be clear for the record that I fully support War Powers Resolution reporting and I'm obviously not against that in any way.

Jack Goldsmith

It's a fair point because, the War Powers Resolution is not viewed as a successful statute, and it's given aims of preventing presidential use of military force abroad. I'm in agreement with you. I just think that the consultation requirement there has been not nothing. We're much better off having it than not having it. And we're just emphasizing the point that we think that the dynamic of Congress's role will be much different when the military is used in the domestic realm and in the foreign realm.

Hyemin Han

Definitely. Although I think another difference, though, is that, of course, War Powers Resolution reporting is important because the American public just may not know about what we do overseas, if not for them, whereas here, it would be a little bit blatant and much more obvious. So would it—you have emphasized more of the debate in the conversation with Congress part of this part of the reform suggestion. What kind of conversation do you envision happening after a reporting to Congress within 24 hours of deployment?

Bob Bauer

Again, it's it depends on the facts. That's going to ultimately drive what kind of a domestic debate that we have. You made an important point that I want to return to very briefly, which is, it is certainly true that the public is going to believe, and probably will have more access to information about what the president has done, the effects on the ground, the reasons for it, whatever, than they do overseas, where, by the way, presidents routinely say, “I know more than you know. You don't have access to the information that I have.” And so the president appeals for deference on that basis and very often gets it. Whereas here, you'll have intensive press coverage, much higher level of accountability for the administration. More pressures to deal with, including, of course, under a reporting with Congress.

So I think for all those reasons, I think there will be, again, depending on the facts, depending on the reasons, depending on the reasons invoked by the president, the authority, or the grounds of the authority invoked by the president, you can imagine a very active debate. And one of the reasons for proposing a quick turnaround on the reporting, including the findings is so that debate can start as soon as troops are deployed, basically within a day.

Jack Goldsmith

And if I could just add, we've been making something of the same point, but I want to underscore it. We're coming up now on the Biden administration blowing through the 90-day limit on the War Powers Resolution. And there have been newspaper reports about this, lots of Lawfare stories about it and the like, with regard to the use of force vis a vis the Houthis and related things.

Not a single person in Congress—there really hasn't been any discussion, pushback, no hearings. Congress has just been silent. And that is Congress's— this is the central failure with the War Powers Resolution is that Congress just simply has said on its hands, because it's decided that, with a few exceptions over the decades, that it's just better to sit back and let the president take this, and then if something goes wrong, Congress can get involved. But for the most part, Congress is just completely irresponsible and enforcing its prerogatives vis a vis the president and more.

That seems inconceivable to me. If any president is using the military in the domestic sphere, this is such a hugely consequential and meaningful act. And part of the reason for the consultation and reporting is not just to give Congress the information. It's a salient trigger for around which there will be debate in Congress. And you can rest assured that there will be, no matter what the circumstances, there will be significant debate, as there always has been when the president uses the military and the domestic sphere. It's very controversial by its very nature. And so in part, the consultation and reporting things are designed, to provide information, but it's also designed to structure political dialogue. And I feel very confident that the nature of that dialogue will be very different in the domestic sphere than in the international sphere.

Hyemin Han

Your last principle, judicial review, pretty short. You say that you don't actually need to add anything about judicial review here for reform. Can you explain why?

Bob Bauer

There is certainly, we think, under extant law, a role that the courts can play. We discussed that earlier. Crafting a judicial review provision that will potentially not undermine the movement toward reform is going to provoke a very active debate. It's going to be difficult to design a provision that it skirts around the case law that you cited earlier, affording the president substantial deference. And we discovered when we worked on the Electoral Count Act reform, we discovered that the question of judicial review was one of the most complicated—device is not the word I'm looking for—but it was an issue that really provoked a significant amount of disagreement. And if we can accomplish everything else in these principles, wading into those waters strikes us as imprudent. It's a problem that's hard to solve.

And we're making a point of saying that although the president received substantial deference under what we think is the better reading of the case law, not absolute deference, but very significant deference, there's still extant law that in the bad faith case, as you put it, that would enable the courts to get involved and the courts would have a basis on which to get involved. But trying to go beyond that and craft some new robust judicial review provision is going to raise a whole host of issues from constitutional questions to policy questions, the role of the courts that I think we think is going to complicate our ability to promote the reform to successful passage.

Jack Goldsmith

Yeah, this is just another example, and again, speaking for myself because this principle stands on its own. But another example where the potentially perfect should not be the enemy of the good enough, and the aim here is to get reform this year, which is an ambitious goal. The debate over a judicial review provision would be fierce, and frankly, in my view, it wouldn't accomplish much one way or the other, so why have it? There's going to be judicial review under the statute. There's going to be deference to the president. Again, to repeat myself, the important point is that there be time limits and procedural limits on the president's use of the power.

Hyemin Han

So now that we've gone through your reform proposals, I want to bring up a hypothetical to try and tease out what their potential impacts might be.

So for instance, if Trump had followed Oath Keepers Stewart Rhodes's advice and invoked the Insurrection Act to call up the armed, unorganized, self-described militias across the country to help keep him in power, what would have happened next? Would Trump's invocation of the Insurrection Act have been reviewable by the courts?

Bob Bauer

Yes, I think in the circumstances you describe, a president would be vulnerable. There would be, I think, always in the courts, and I think even a case like Martin v. Mott supports it. There's mixed language in that case, but there's language that supports it, alerts to the possibility of executive bad faith, that a president is not acting in fidelity to the rule of law.  And I was struck by language in Martin v. Mott that reads as follows, “When the president exercises an authority confided to him by law, the presumption is that it is exercised in pursuance of law. Every public officer is presumed to act in obedience to his duty until the contrary is shown. And a fortiori, this presumption ought to be favorably applied to the chief magistrate of the union.” So there's language of presumption there.

In the normal course, we expect the president to utilize his authorities in the national interest. In your hypothetical, there's clearly a personal-political interest in the incumbent president who is challenging the election, who has been heard to say that it was fraudulent, is now calling the army up in support of that claim. And it isn't clear why it is that this deployment would be required in any event. Even if one imagined he was acting for official reasons, what's the deployment for? There's no evidence that federal and state law enforcement is not up to the task of addressing any kind of disorder. If there were disorders like the one in the District of Columbia and demonstrations in other states, there was no apparent breakdown of the ability of state and local law enforcement, potentially supplemented by federal law enforcement, to deal with the threat.

So when you have no clear reason for the invocation of troops in a case in which the president is acting for, at least many would say, plainly personal-political self-interest, and is certainly acting in a dual role because he stands to benefit politically from the intervention, I think the court would look closely at that presumption and wonder whether it applies in this particular case. And so I think the president on those facts, a president on those facts, would be vulnerable to a challenge under extant law.

Hyemin Han

How would your reforms change the answer to the hypothetical, if at all?

Bob Bauer

Yes, I think that reforms like these that put constraints on the president, that put him to the requirement of reporting to Congress, reporting consultation with state authorities, doing so on a timetable, limiting the deployment and requiring congressional authorization, I think could all operate to help create the record on which a court would evaluate a challenge, like the one I described a few minutes ago. It puts, certainly, Congress into the position of having equities that it has to protect. So you can imagine Congress would become very actively vocal on this topic, maybe not unanimously. But there would certainly be congressional voices that we could imagine that would be heard on this. And the president's findings, his fidelity even to the requirements of the statute, all of that would be part of a record on which this, as I said, bad faith conduct might be evaluated.

And so I think, once Congress has stepped in to tighten up the definitions and to put the president under these procedural constraints, that in turn, I think, ties into whatever court review under extant law would be available in circumstances like the one you described.

Hyemin Han

So now that we've discussed your principles, which of these do you think are the most low hanging fruit, bipartisan, easy adoption principles?

Bob Bauer

No reform of this scale is going to be easy because you do have to draw bipartisan support. And one of the dangers is that the issue becomes politicized, and the merits are put to the side while there's an argument about whether it's all about Trump or not all about Trump. And we think that's unfortunate because it shouldn't be by any means all about Trump. So I don't think it would be easy overall.

It's very difficult for me to imagine a reform, particularly because ours is so process-based, like this, that can be broken out into small pieces. It wouldn't, to me, and I'm speaking just for myself, make a huge amount of sense to do some fiddling with the terminology, but leave, for example, the consultation reporting requirements, authorization issues out. That just wouldn't strike me as really answering the mail and might not be nearly enough to generate congressional support.

Hyemin Han

Got it. So it's a package deal.

Bob Bauer

Not necessarily with respect to everything we're proposing, but it needs to be more comprehensive than say, let's strike the word assemblage.

Hyemin Han

Right. And assuming no legislative reform, is there anything that the current administration could do before a new administration comes in to potentially hinder any abuses of using the military in improper ways, whether under the insurrection act or in other ways?

Bob Bauer

As Jack mentioned, there are internal procedures within the military. There are ways in which the administration can ensure that the law is enforced, the norms are enforced, but I'm not sure I can suggest anything novel about what the administration can do when you have a statue survives being in theory, let's assume it survives this administration, goes into the next, where the next president is willing to take aggressive action with the Insurrection Act. I'm not sure what could be done now, given the way the statute is crafted, to meaningfully limit, particularly in a bad faith environment, but even in a very aggressive use environment, not much that a current administration, that I can think of off the top of my head, can do except eventually to support congressional deliberation and passage of the reform.

Hyemin Han

What advice do you have for policymakers as they try to push this reform through in 2024?

Bob Bauer

Most important, I think the conversation, and this is going to be obviously a challenge, has to be broadened out like it was in the case of Electoral Count Act reform, beyond the very polarized political pressures of the moment. If it becomes just a debate about what one president might do and no other president would consider doing it, then I think partisanship will take hold and it'll be very difficult for the argument to be heard and for the bipartisan coalition required for its passage to be developed. So we have thought, which is why our group is a very balanced group and includes officials from the Democratic administrations, Republican administrations, including the Trump administration, it's very important for the fundamental problem with this statute, as we've known it to be a problem for decades, actually centuries, for that to be the focal point of the debate.

Yes, as I said earlier, Trump brought attention to it, as did his advisors, but this would have, could have happened anyway, with someone other than Trump, or in the future with some other president, some other circle of advisors. And it's important to point to that, to point to the risk having always been presented because of the very poor structure of this statute.

Hyemin Han

I think we'll leave it there. Bob Bauer and Jack Goldsmith, thank you so much for your time today.

Bob Bauer

Thank you very much for having us. Excellent questions, and we really appreciate the opportunity to have this conversation.

Jack Goldsmith

Thank you very much.

Hyemin Han

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