A MARTÍNEZ, HOST:
A bipartisan group of lawyers and former national security officials are calling for limits on a president's power to deploy federal troops within the United States. The Insurrection Act grants presidents emergency powers to send in troops to quell unrest in American cities. Now, the last time it was used was during the 1992 Los Angeles riots. While in the White House, Donald Trump considered invoking the Insurrection Act to quash the protests prompted by the murder of George Floyd, and he's also threatened to send troops into Democratic-led cities if he's reelected.
Among those urging Congress to overhaul the act is New York University law professor Bob Bauer. He served as White House counsel under President Obama, and he's President Biden's personal attorney but tells us that in this case he's speaking only for himself. Professor Bauer, the Insurrection Act dates back more than two centuries, so why change it now?
BOB BAUER: It's always been an example of a poorly drafted statute that just - fundamental clarity of application and invites executive overreach. I don't think there's ever been any question about it. However, of course, over time, these sorts of problems tend to go unaddressed unless there's a sharp focus on them, something occurs that directs attention to them. Now attention has been directed to it, and the work of reform really ought to begin.
MARTÍNEZ: Is that something Donald Trump?
BAUER: Certainly a lot of this develops around...
MARTÍNEZ: (Laughter).
BAUER: Of course, a lot of this develops around reports of interest that Donald Trump and his advisers had in various uses of the Insurrection Act that are highly controversial, if not, I think, plainly abuses. But having said all of that, what is key is that this statute is an invitation to abuse - whoever happens to control the White House. It's simply badly structured. There are terms in there that are highly antiquated. The president is authorized to deploy troops domestically to address unlawful - and I'm now quoting - "combinations, obstructions, assemblages." There is no real limiting principle built into the statute, and there is no role for Congress to oversee and to attempt to limit in any way the president's use of this deployment authority. Congress is literally missing from the picture altogether. There are no time limits on deployments.
There's no role, in other words, for anybody but the president to make a decision about the deployment of troops for these very vaguely stated purposes. And that's the reason why now that attention has been focused on it, there's a bipartisan opportunity. And that's what this American Law Institute working group tried to seize on, a bipartisan opportunity to amend the statute. So it's available in cases of extreme need, where the executive should be in a position to order these kinds of deployments for limited periods of time for specified purposes, but it's a constrained authority. It's an authority that is an accountable authority, if you will.
MARTÍNEZ: So just to be clear, for you, the Insurrection Act has been problematic for 200 years and Donald Trump is not necessarily the reason why you feel it should be overhauled?
BAUER: No, it has prompted the debate. It has certainly refreshed the debate, there's no question about that. But it reminds me of the Electoral Count Act that was reformed at the end of 2022. That statute was also very poorly drafted and very potentially dangerous in sort of misinterpretation and misapplication. It took the events of January 6, unfortunately, direct attention to it. And there was once again a bipartisan effort to amend it that was ultimately successful. And we would hope to see that replicated here.
MARTÍNEZ: Now, you mentioned some of the things that you feel are problematic about it. What do you think might happen if the Insurrection Act does not get an overhaul?
BAUER: Unfortunately, we know that in situations of, if you will, high political and social stress, it goes on a list of recommendations, or so it appears from the record that has been compiled over the last couple of years - that there are those in the executive branch who are prepared to push the Insurrection Act in a particular direction, precisely because it offers the opportunity for unconstrained presidential action. We have in this country a very long tradition of avoiding the domestic use, domestic deployment of our armed forces. There is, in fact, a statute on the books, Posse Comitatus, that prohibits the use of these troops for - to execute the laws. This is an exception but it's an exception - that is to say, the Insurrection Act - that needs to be trimmed back, clarified, tightened. And now is the moment to do it.
MARTÍNEZ: That's NYU law professor and former White House counsel Bob Bauer. Professor, thank you very much for being with us.
BAUER: It's a pleasure. Thank you. Transcript provided by NPR, Copyright NPR.
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