Given the stakes, Congress needs to take that nominal power away from an unelected bureaucrat, and instead impose neutral, self-executing terms for unlocking transition dollars and access to information crucial to the transition effort.
The final—and exceptionally disturbing—legislative weakness lies in the statute that authorizes presidents to use troops domestically against civilians.
After the videotaped killing of George Floyd by a white police officer last summer, Trump threatened to “mobilize all available federal resources, civilian and military, to stop the rioting and looting” that followed widespread protests. Although the Posse Comitatus Act of 1878 generally limits the federal government’s power to use the military to enforce civilian law, Trump’s statement implicated an exception set forth in a different law. The Insurrection Act is an amalgamation of statutes dating back to 1792 that authorizes the president’s use of the armed forces to assist a state in a crisis, either at that state’s request, as happened in Los Angeles in 1992 following the beating of Rodney King, or unilaterally. The act also allows the president to call up troops when “any insurrection, domestic violence, unlawful combination, or conspiracy … hinders the execution of the laws of [a] State, and of the United States,” in a way that deprives “any part or class of its people” of their constitutional rights.
David A. Graham: Don’t let them pretend this didn’t happen
This obviously creates a possibility for enormous violence against American citizens. Military leaders appear to have been worried about Trump going down this path. In a rare letter published on January 3 in The Washington Post, all 10 living former secretaries of defense warned that “efforts to involve the U.S. armed forces in resolving election disputes would take us into dangerous, unlawful and unconstitutional territory,” and chided “civilian and military officials who direct and carry out such measures” that they would be accountable under criminal laws “for the grave consequences of their actions on our republic.”
The Insurrection Act contains only one clear prerequisite to calling out the armed forces, and it is a flimsy one: The president must first issue a proclamation ordering “the insurgents to disperse and retire peaceably to their abodes within a limited time.” Congress must amend the Insurrection Act to impose strict triggering criteria that can prevent its abuse. Under the original statute, the president had to secure approval from a federal judge, but that requirement was dropped when the statute was permanently enacted in 1795.
The past week was catastrophic, and the week ahead remains dangerous. If America makes it through this epic stress test, the next Congress must set aside the brutal partisanship that characterizes modern politics and establish some legislative protections against demagoguery. Or next time, we may not have that chance.