The Lawfare Podcast: Jack Goldsmith and Bob Bauer on Reforming the Insurrection Act Archived Episode | Originally Released April 12, 2024

Introduction

In this archival episode of The Lawfare Podcast, host Hae Min Hahn engages in an in-depth discussion with Jack Goldsmith, Lawfare Co-founder and Harvard Law School professor, and Bob Bauer, Professor of Practice and Distinguished Scholar in Residence at New York University School of Law. The conversation centers on the history, current applications, and the urgent need for reforming the Insurrection Act—a pivotal yet outdated statute that grants the U.S. President authority to deploy military forces domestically.

1. Understanding the Insurrection Act

Timestamp: 04:39

Jack Goldsmith provides a comprehensive overview of the Insurrection Act, tracing its origins back to the 1790s. He explains that the Act authorizes the President to use the militia or armed forces to address various forms of domestic unrest, particularly when there's a breakdown of state or federal authority. Despite its longstanding presence, Goldsmith highlights that the statute has remained largely unamended for centuries, resulting in overly broad powers vested in the executive.

Notable Quote:

"The statute today... authorizes the President to use the militia or the armed forces in an array of very broadly worded circumstances. And that's the essential problem." — Jack Goldsmith [05:46]

2. Historical Applications and Current Relevance

Timestamp: 08:09

Bob Bauer discusses historical instances where Presidents Kennedy and Eisenhower invoked the Insurrection Act to enforce federal desegregation orders. These actions are cited as non-controversial uses aimed at upholding federal law. However, Bauer notes a lack of consistent patterns in its application until recent times, where misuse and potential abuse have brought the Act back into contentious public discourse.

Goldsmith adds that while the Act was crucial in the past for maintaining national order, its broad language today poses risks of executive overreach, especially in the absence of clear checks and balances.

Notable Quote:

"It's extremely broad... and it gives the President extraordinary discretion in determining what counts as the right way to use the statute." — Jack Goldsmith [09:58]

3. The Resurgence of Debate and Political Implications

Timestamp: 12:36

The conversation shifts to recent events, such as former President Donald Trump's consideration of invoking the Insurrection Act during protests and border disputes in Texas. Bauer emphasizes that while Trump's actions have spotlighted the Act, the underlying issues with the statute transcend any single administration or political party.

Goldsmith uses the Texas border dispute as a case study to illustrate both the necessity and dangers of the Act. He underscores that while federal authority is essential in certain crises, the potential for political manipulation and militarization of domestic issues is a significant concern.

Notable Quote:

"This example shows that both sides have a stake in ensuring that this statute not be abused." — Jack Goldsmith [14:09]

4. Proposed Principles for Reform

Timestamp: 34:46

Goldsmith and Bauer outline a set of principles aimed at reforming the Insurrection Act to prevent executive overreach while preserving its necessity in extreme situations. Their proposals focus on tightening the triggers for invoking the Act, implementing time limits, establishing reporting requirements, and ensuring judicial oversight.

Subsections:

• Reforming Triggers for Invocation

  Bauer emphasizes the need to eliminate outdated terms and strengthen conditions under which the Act can be invoked. He advocates for clear definitions to prevent misuse, such as unauthorized deployments based on minimal disturbances.

  Notable Quote:

  "We want to ensure that regular law enforcement being overwhelmed governs the president's use of authority." — Bob Bauer [21:00]

• Time Limits, Reporting, and Consultation

  The experts propose that the President must consult with state governors prior to deploying troops and must report findings to Congress within 24 hours. Additionally, they suggest imposing a 30-day limit on such deployments, requiring congressional renewal for any extension.

  Notable Quote:

  "The President's authority to use the Insurrection Act, once invoked, runs out after a certain period of time." — Jack Goldsmith [22:19]

• Judicial Review

  While acknowledging the complexities, Bauer and Goldsmith argue against adding new provisions for judicial review. Instead, they rely on existing legal frameworks to handle potential abuses, believing that procedural reforms alone can enhance accountability.

  Notable Quote:

  "There's going to be judicial review under the statute. There's going to be deference to the President." — Jack Goldsmith [28:56]

5. Addressing Loopholes and Special Cases

Timestamp: 38:44

The discussion delves into specific loopholes, such as the use of the National Guard in the District of Columbia, which lacks a state governor's oversight. Goldsmith points out the potential for circumventing the Insurrection Act through alternative statutes, underscoring the need for comprehensive reform to close these gaps.

Notable Quote:

"There is a potential loophole here that needs to be filled." — Jack Goldsmith [38:44]

6. Impact of Proposed Reforms

Timestamp: 53:07

Using a hypothetical scenario where a President misuses the Insurrection Act for personal political gain, Bauer assesses that the proposed reforms would provide mechanisms for legal and congressional checks. The requirement for timely reporting and clear criteria would create a robust framework to challenge wrongful deployments effectively.

Notable Quote:

"Congress would become very actively vocal on this topic... it ties into whatever court review under extant law would be available." — Bob Bauer [57:50]

7. Path Forward and Policy Recommendations

Timestamp: 60:25

Bauer advises policymakers to approach the reform process as a bipartisan issue, focusing on the statute's historical shortcomings rather than contemporary political tensions. The goal is to foster a consensus that recognizes the Act's necessity while implementing safeguards against its misuse.

Notable Quote:

"It shouldn't be by any means all about Trump. So I don't think it would be easy." — Bob Bauer [58:00]

Conclusion

Jack Goldsmith and Bob Bauer conclude by reiterating the importance of timely and comprehensive reform of the Insurrection Act. While acknowledging the challenges in achieving bipartisan support, they emphasize that the Act's current structure poses significant risks to democratic governance and civil liberties. Their proposed principles aim to strike a balance between empowering the executive to maintain order and instituting necessary checks to prevent potential abuses.

Final Quote:

"The consultation and reporting things are designed to provide information, but it's also designed to structure political dialogue." — Jack Goldsmith [50:40]

About the Speakers

• Jack Goldsmith: Co-founder of Lawfare, Professor at Harvard Law School, and a renowned expert in national security law.

• Bob Bauer: Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, specializing in constitutional and national security law.

For More Information

Visit Lawfare to access more discussions, articles, and resources on national security, law, and policy.

This summary captures the essence of the archival episode discussing the Insurrection Act, its historical context, contemporary challenges, and proposed reforms to ensure its appropriate and accountable use.