Blumenthal Introduces Legislation to Limit Unchecked Presidential Authority under the Insurrection Act

[WASHINGTON, D.C.] – After President Trump threatened to deploy U.S. military troops to “dominate” demonstrators protesting police brutality, U.S. Senator Richard Blumenthal (D-CT), a member of the Senate Judiciary and Armed Services Committees, introduced legislation to restrict the President’s authority under the Insurrection Act. Blumenthal will be seeking to include this legislation in the upcoming National Defense Authorization Act to ensure that the military is not weaponized by the President to suppress Americans’ free expression.

The CIVIL Act would reform the centuries-old Insurrection Act, which gives the President broad and vague authority to deploy troops – either with or without the request of a state – to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy.” The current law has been used sparingly by other presidents given the potential for the military to escalate tensions, rather than restore order, during a domestic crisis.

“President Trump has threatened to use a slavery-era law to silence calls for justice from thousands of Americans protesting centuries of racist oppression,” said Blumenthal. “I support demonstrators’ demands for change and the constitutional rights of all Americans to seek it. President Trump’s threats to ‘dominate’ protestors with military might are a clear and present danger to our most fundamental constitutional rights. I’m proposing urgently necessary reforms to impose oversight and accountability to the President’s broad, virtually unrestricted power. If the President uses military force against Americans at home, Congress should demand at least the same checks that apply to his use of force against adversaries abroad.”

The legislation is co-sponsored by U.S. Senators Tammy Baldwin (D-WI), Chris Van Hollen (D-MD), Patrick Leahy (D-VT), and Edward J. Markey (D-MA).

The CIVIL Act would reform the Insurrection Act to restrict the President’s authority to use active duty troops for domestic law enforcement purposes by:

• Clarifying that the Insurrection Act can only be invoked to protect – not restrict – civil rights.
• Establishing an expedited procedure for judicial review to ensure that individuals, or a state or local government, may bring a civil action if the President’s authority under the Insurrection Act is misused or abused.
• Limiting presidential discretion and empowering the judiciary to determine whether civil rights laws have been violated.
• Requiring the President to consult with Congress prior to invoking the Insurrection Act.
• Requiring the President, Secretary of Defense, and Attorney General to provide a joint certification to Congress that the state is unable or unwilling to enforce federal law. This joint certification must provide an explicit justification for the use of the Insurrection Act’s authority and a full description of the scope and duration of its use.
• Allowing Governors to make a direct request to the President to provide active duty troops under the Insurrection Act, rather than requiring the legislature to make the request first. This technical change will make it easier for Governors to seek support if actually necessary, limiting potential presidential abuse of this authority.
• Ending Insurrection Act authority after fourteen days unless it is specifically extended by a joint resolution of Congress.
• Prohibiting active duty troops from participating in a search, seizure, arrest, or other law enforcement activity unless expressly authorized by law. This provision would clarify the limitations of the Posse Comitatus Act, which is applicable to all active duty troops if the Insurrection Act is not invoked.