Opinion | It’s Time to Fix America’s Most Dangerous Law

There is a land mine embedded in the United States Code, one that Donald Trump, if re-elected president, could use to destroy our republic. But it’s not too late for Congress to defuse the mine now and protect America.

I’m talking about the Insurrection Act, a federal law that permits the president to deploy military troops in American communities to effectively act as a domestic police force under his direct command. In theory, there is a need for a well-drafted law that permits the use of federal troops in extreme circumstances to maintain order and protect the rule of law. The Insurrection Act, which dates back to 1792 but has since been amended, is not, however, well drafted. And its flaws would give Trump enormous latitude to wield the staggering power of the state against his domestic political enemies.

These flaws are especially relevant because Trump and his allies are keenly aware of the act’s provisions and have long expressed interest in its use. Trump has publicly regretted not using more military force to suppress riots in the wake of George Floyd’s killing in 2020, there were suggestions that he utilize the act as part of his plot to steal the 2020 election, and now there are reports that Trump might invoke the act on the first day of his next term, to suppress demonstrations, to control the border or both.

Moreover, these reports have to be read in the context of Trump’s latest public pronouncements. He has declared many of his domestic political opponents to be “vermin.” His campaign has promised that his critics’ “sad, miserable existence” will be “crushed.” And he has specifically told his followers, “I am your vengeance.”

Some version of the Insurrection Act is probably necessary. After all, from the Whiskey Rebellion to the Civil War to Trump’s own insurrection on Jan. 6, we have seen direct, violent challenges to federal authority. But any such authorization should be carefully circumscribed and subject to oversight. The authority granted by the act, however, is remarkably broad, and oversight is virtually nonexistent.

The Insurrection Act contains a number of provisions, and not all are equally bad. For example, the first provision, 10 U.S.C. Section 251, provides that the president may deploy troops “upon the request of [a state’s] legislature or of its governor if the legislature cannot be convened” in the event of an insurrection. There is no unilateral presidential authority under this provision; the president’s power is activated only by a state request.