It’s Time to End the Anti-Democracy Myth: Trump Must Reform the Insurrection Act

Anglo-American tradition long ago set the principle that law should be enforced locally — the idea that the county sheriff and able-bodied local private citizens were the prime institutions for maintaining public order. In England, service on what was called the “posse comitatus” was mandatory, and refusal to serve meant loss of citizenship. As power became more centralized, the posse remained a major colonial institution that kept order and controlled insurrection.

Posse comitatus became even more important as colonialists moved into the American West, where the posse and sheriff were the main institutions enforcing local peace. The American Constitution followed the principle by leaving most domestic peacekeeping to states — and, through them, counties — which served as the base for Civil War recruitment, especially in the North. Seeking post-war reconciliation between North and South, the Posse Comitatus Act (PCA) of 1873 forbade the military from local law enforcement and removed such troops from the South. In the 1980s, posse comitatus additionally forbad military enforcement of drug trafficking and terrorism laws.

In 1957, President Dwight Eisenhower side-stepped PCA to use the military to integrate segregated Arkansas schools by invoking general anti-insurrection powers. In 2006, President George W. Bush amended the PCA to allow national troops to be used domestically in a wide range of emergencies after the 9/11 terrorist attacks. But as threats waned, in 2008 these changes were revoked by Congress in their entirety. And posse comitatus was strengthened again in 2021.

There is much media use of the term “Insurrection Act” (IA) as an exception to the PCA. But the so-called IA actually consists of various congressional acts passed between 1792 and 1871 that have been used to bypass the PCA and allow presidents to use the military within states against “insurrections.” In 2023,” insurrection” was invoked by several states to deny former President Donald Trump access as a candidate to state ballots by invoking the 14th Amendment’s “insurrection clause.” But the Supreme Court ruled that since no congressional action was taken to apply the amendment to presidents in law, it could not be used to justify such restrictions.

Most recently, centralist legal institutions have especially criticized two provisions within the insurrection laws as much too broad. According to Brookings Institution senior fellow William A. Galston:

[One] provision authorizes the president to call out the National Guard or regular military forces “whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, makes it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.”

The other “gives the president power to ‘take such measures he considers necessary’ to suppress ‘any insurrection, domestic violence, unlawful combination or conspiracy’ if it meets certain specifications.” These were both pre-PCA laws, but the Supreme Court has not specifically used PCA to limit them. So today there is some support for  American Law Institute recommendations to amend IA laws to: 1) “require the president to consult, prior to the deployment of troops, with the governor of any state into which troops will be deployed”; 2) “require the president to make findings on the need to invoke the Insurrection Act, and to report these findings to Congress, along with a summary of consultations with state authorities, within 24 hours of deployment”; and 3) “establish a time limit on the president’s authority to deploy troops.” Others have added 4) “a limit of no more than 30 days unless Congress explicitly authorizes an extension.” As Galston argues, these are hardly extreme changes (and they’re more consistent with PCA), so such changes should be acceptable to both parties and ideally could be passed by Congress even before the 2024 election.

The Washington Post supports such presidential limits as necessary to control a possible Trump presidency, which it argues would be a “threat to democracy.” But even so, the four recommendations have not proved attractive to progressives generally, beyond as a political means to attack Trump. President Joe Biden could still win the election, and he might desire full IA power to limit state Republican immigration, anti-climate, or education actions. Even if Biden loses, the Left knows it will be back in power someday and might want that power then.

So, what about the Right? Politically, any action now would surely need the active support of candidate Trump. The Left assumes that such support by the “suppressor of democratic rights” is impossible. Yet, as less-biased former CIA analyst and Cuban expat Martin Gurri explained last year, “[R]elax. Trump is too old, too isolated, and too ADD to have a shot at dictatorship — and if he tried, the result would be comedy rather than tyranny.” Indeed, “January 6 was not an insurgency aiming to install Trump as Chief Authoritarian. In an insurgency, people with guns shoot at each other and lots of them die.” The only one actually killed during Jan. 6 was an unarmed protester.

Still, as Wall Street Journal columnist and sometimes Trump critic Holman W. Jenkins Jr. argues, anti-democracy talk is a diversion from the real threat to democracy today, which comes from centralized bureaucratic agencies very much not of the posse comitatus type. As he shows, 2024 will be the third presidential election in a row where the intelligence agencies and their mainstream media outlets have provided the “news” meant to determine the electoral results.

The FBI’s James Comey began the story by aiming only moderate criticism of official document-handling carelessness but presenting no actual charges against the overwhelmingly favorite Democratic presidential candidate in 2016. But his ham-handed handling inadvertently led to the election of underdog Donald Trump. To correct that error by Inauguration Day 2017, Comey, the CIA’s John Brennan, and the DNI’s James Clapper had successfully promoted the later-disproved “Russian intelligence” myth. Moreover, this charge of Russian collusion has been kept “mainly media proof ever since,” from 2020 right up to today’s 2024 election.

Jenkins now warns that rather than worrying about Trump as a potential dictator, people should actually “worry about a future leader with President Obama’s gifts not Donald Trump’s” — referring to a cultured communicator — “while remembering that the collusion hoaxes were promoted by official U.S. agencies.” “Mr. Trump turns out to be less of a danger to our institutions than they are to themselves,” Jenkins concludes.

Even if Trump so desired, would his second presidential administration be able to control an overwhelmingly Democratic bureaucracy where even the chairman of the military Joint Chiefs of Staff informed his Chinese military equivalent before Trump became a lame-duck in 2020 that he would warn him if Trump or others took inappropriate actions? “If we’re going to attack, I’m going to call you ahead of time,” Mark Milley said. “It’s not going to be a surprise.” Some democratic dictatorship!

Interestingly, posse comitatus localism is popular with Trump’s base voters, and bureaucracy is not. What if candidate Trump were to come out now and support Insurrection Act reform along the lines of the four American Law Institute recommendations? The idea of a supposed anti-democracy candidate wanting to take power away from the executive and return it to the people in the states would have enormously popular appeal and would confound opponents.

For Trump, that would end the antidemocracy myth, put opponents on the defense, and place an important limit on an out-of-control bureaucracy, and it would do so by strengthening the decentralized posse comitatus ideal so historically necessary for a free society.

And it is the right thing to do for the country. Any takers?

Donald Devine is a senior scholar at the Fund for American Studies in Washington, D.C. He served as President Ronald Reagan’s civil service director during his first term in office. A former professor, he is the author of 11 books, including his most recent, The Enduring Tension: Capitalism and the Moral Order, and Ronald Reagan’s Enduring Principles and is a frequent contributor to The American Spectator.

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