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Legal experts are calling for reforms to the insurrection act

AILSA CHANG, HOST:

A bipartisan group of legal experts is sounding an alarm about presidential power this election season. They're pushing Congress to update a 150-year-old law and limit how the White House can deploy the military on American soil, in case a future president takes advantage of that sweeping power. NPR justice correspondent Carrie Johnson reports.

CARRIE JOHNSON, BYLINE: The Insurrection Act gives the president the power to call on the military during an emergency to curb unrest or rebellion here at home. Elizabeth Goitein has studied the law for the Brennan Center for Justice.

ELIZABETH GOITEIN: So it's really up to the president to decide when to use the armed forces as a domestic police force. And that is tremendous cause for concern because an army turned inward can very quickly become an instrument of tyranny.

JOHNSON: The last time a president invoked the law was in 1992, when President George H.W. Bush used it to tamp down violence in Los Angeles after a jury acquitted police officers in the beating of motorist Rodney King. But Goitein says most people remember the law for another moment in civil rights history.

GOITEIN: I think most people, to the extent they've heard of the Insurrection Act, probably associate it with President Eisenhower calling up federal troops to enforce school desegregation in Little Rock, Ark.

JOHNSON: More recently, it's been on the table after Hurricane Katrina devastated New Orleans and before the storming of the U.S. Capitol on January 6, 2021. Maryland Congressman Jamie Raskin, a Democrat, helped investigate the violence at the Capitol.

JAMIE RASKIN: Stewart Rhodes, who's been convicted of seditious conspiracy, which means conspiracy to overthrow or put down the government, was essentially calling on President Trump to use the Insurrection Act for the purposes of perpetrating an insurrection.

JOHNSON: Rhodes wanted Trump to take advantage of old language in the Insurrection Act that mentions militias, and to deploy the far-right Oath Keepers group to keep Trump in power. Trump never invoked that law, but some lawmakers and legal experts say the episode should serve as a warning. Jack Goldsmith is a law professor at Harvard and a leader of the Presidential Reform Project. He says updating the Insurrection Act should be a priority.

JACK GOLDSMITH: It's a huge blank check. It is easily subject to abuse. It's easy to imagine abuse.

JOHNSON: Goldsmith says lawmakers need to make three big changes to the law. First, narrow and clarify the language for when the president can use this sweeping power.

GOLDSMITH: But the statute as it's written has no limitations, and so it can be used in practically any situation where the president thinks it needs to be used. And that's just something that's very out of whack and needs to be fixed.

JOHNSON: Next, Goldsmith says the law should require a president to consult with state officials and with Congress. Finally, Goldsmith says...

GOLDSMITH: Third and most importantly, the absolutely vital thing that needs to be done is that there needs to be time limits on the use of the Insurrection Act.

JOHNSON: Forcing Congress to make a decision. Connecticut Senator Richard Blumenthal, a Democrat, is floating a proposal that would give the president about a week for Congress to approve such a move, or the military would need to be dispersed. Blumenthal says he's talking with his Republican counterparts about the plan. He says it's about more than Donald Trump.

RICHARD BLUMENTHAL: My hope is that my colleagues, in a very bipartisan way, will recognize the need for safeguards and guardrails on a power that right now is unlimited, untrammeled and could be easily abused by any president, not one particular individual.

JOHNSON: The old law is hovering over the current presidential campaign. The Washington Post has reported Trump might use the Insurrection Act to suppress protests or address crime in big cities if he's reelected. And some Democrats have called on President Joe Biden to use that authority to federalize the National Guard along the southwest border, one more reason for Congress to update a law that dates to the 1790s to reflect circumstances on the ground today. Carrie Johnson, NPR News, Washington.

(SOUNDBITE OF NEAL FRANCIS' "HOW HAVE I LIVED (REPRISE) (INSTRUMENTAL)") Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Carrie Johnson is a justice correspondent for the Washington Desk.

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