Bipartisan Group Seeks Reform of Insurrection Act

President Joe Biden's personal attorney is leading a bipartisan group of former senior national security and legal officials that is urging Congress to reform the Insurrection Act, which allows the president to deploy U.S. military and federalized National Guard forces to suppress domestic unrest.

The Insurrection Act was passed in 1807 and amended twice during and after the Civil War and has been used more than 30 times, the last in May 1992 by President George H.W. Bush following the Los Angeles riots, according to the Brennan Center for Justice.

Bob Bauer, Biden's personal attorney and White House Counsel under Barack Obama, and Jack Goldsmith, an assistant U.S. attorney general in the George W. Bush administration, co-lead the group, which on Monday published "Principles for Insurrection Act Reform."

The principles suggest the Insurrection Act be amended to make clear the president cannot deploy armed forces unless "the violence [is] such that it overwhelms the capacity of federal, state, and local authorities to protect public safety and security."

It also urges Congress to adopt reporting and consultation requirements, and time-limit constraints, on presidential deployments under the act, such as:

Requiring consultation with the governor before deploying troops into any state.

Requiring the president to report to Congress, within 24 hours of deployment, on the need to invoke the Insurrection Act and on consultations held with state authorities.
Limiting the president's authority to deploy troops under the act to a maximum of 30 days absent renewed congressional authorization.
Establishing a fast-track procedure for Congress to vote on renewal of presidential authority under the act.

A number of Republicans participated in drafting the recommended reforms, including former general counsel of the CIA Courtney Simmons Elwood and National Security Council legal adviser John Eisenberg, each of whom served in the Trump administration.

"Revising the Insurrection Act in these respects will address the major concerns with the statute," Goldsmith said in a news release by The American Law Institute, which sponsored the initiative. "The principles suggest specific, common-sense reforms and are designed to allow members of both parties to find common ground. At the same time, these modest and reasonable changes would be historic — providing necessary checks and balances where none currently exist before they are ever needed."

Bauer and Goldsmith also were behind the push in 2022 to reform the Electoral Count Act. The new law raised the threshold for objecting to the results, clarified the vice president's role, and made new rules on how states send their slate of electors.

The impetus to reform the Insurrection Act reportedly came because former President Donald Trump considered using the act in 2020 to forcefully quash protests over the killing of George Floyd.

Eisenberg, who also worked on issues involving presidential emergency power in the George W. Bush administration after the Sept. 11 terrorist attacks, told The New York Times he saw the project as a matter of good government.

"This is something of great importance regardless of what party you are in because, obviously, it is an area that can be abused," Eisenberg said. "If the triggers, for example, are too vague, the risk is that it can be used in circumstances that do not really warrant it. So, it is important to tighten up the language to reduce that risk."