Donald Trump’s Insurrection Act Gambit

Like most Americans, I knew little about the Insurrection Act until recently. But the more I learn, the more I worry about its potential to erode our fundamental liberties.

The Posse Comitatus Act, enacted in 1878, mostly barred the U.S. military from the role in civil law enforcement that it had played during the Civil War and its aftermath. The act permitted legislated exceptions, however. The most important of these is the Insurrection Act.

This act gives the president the authority to deploy the military to assist law-enforcement agencies in three situations: when a state government requests federal aid to suppress an insurrection in that state; when the president deems military deployment necessary to “enforce the laws" of the U.S. or to “suppress the rebellion"; and when the president deems such deployment necessary to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy" in a state whose government is unable or unwilling to enforce the constitutional rights of its citizens or “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws."

I quote from the statute to make a point: Its scope, which is both broad and vague, gives the president enormous discretionary power. Key terms—insurrection, rebellion and domestic violence—aren’t defined. As an analysis by the Brennan Center shows, the president alone may decide whether these prerequisites for deploying the military have been met, and the Supreme Court has said it has no authority to review the president’s decision.

To be sure, a 1932 Supreme Court decision held that courts may review the lawfulness or constitutionality of acts the military performs after it has been deployed, but in the swirl of events basic liberties may be curtailed well before the judiciary can step in.

Consider this scenario: After a divisive campaign, a presidential candidate opposed by half the country is inaugurated, and a massive protest breaks out in Washington. While observers and authorities report that the demonstrators are mostly peaceful, the new president disagrees, federalizes the National Guards of Maryland, Virginia and the District of Columbia, and deploys them with orders to suppress the protests.

Or this one: After police in a large city kill an unarmed black man, protests break out and spread to other cities. Although the protests are peaceful at first, the president argues that similar events in the past have turned violent in a manner that exceeded local and state capacity to suppress them. He then orders the deployment of military forces to break them up before threats to life and property arise.

In situations such as these, fundamental rights such as the freedoms of speech and assembly are at stake, and the potential for the arbitrary and capricious use of the Insurrection Act is evident. This possibility should disturb anyone who doesn’t trust every president to use his authority prudently and within constitutional restraints. After 2020, Congress should have reformed the Insurrection Act to prevent future presidents from using it to suppress basic liberties.

In one of the most enduring lines of the 2016 presidential campaign, veteran reporter Salena Zito wrote of Mr. Trump that “the press takes him literally, but not seriously; his supporters take him seriously, but not literally." She implied—plausibly—that his supporters, not the press, were reading him correctly. But that was then, when his plans were relatively unformed and his understanding of how to staff his administration wasn’t informed by any government experience.

Things are different now. In his speech to the Conservative Political Action Conference in March, Mr. Trump declared that he had learned a great deal during his first term about who is strong and who is weak, about who can be trusted and who can’t. With the help of such groups as the Claremont Institute and the Heritage Foundation, Mr. Trump’s team is busy formulating policies and making lists of people on whom it can rely to staff his administration.

A second Trump term would be much more effective than the first, a prospect that thrills his supporters and sends shivers through those who fear, as I do, that his re-entry into the White House would trigger the biggest threat to constitutional governance since the Civil War. Let’s take him literally as well as seriously.