Amending Insurrection: Restoring the Balance of Power in The Insurrection Act

The Insurrection Act allows the president to domestically deploy and utilize the federal standing army and state militias to perform functions normally performed by domestic law enforcement. The president can invoke the Act when circumstances make it impracticable to enforce domestic law by normal means, when the execution of the law is obstructed such that it deprives citizens of rightful legal protections, or upon the request of a state. Under the current version of the Act, the president possesses the sole and absolute discretion to determine when it is invoked during the two former instances above. When invoked, the Act provides broad and largely undefined authority for the president to act. This Comment reviews the history behind the passage of the Insurrection Act and follows the subsequent amendments to the contemporary version. It argues that Congress and the Supreme Court have failed to provide adequate checks on the president’s domestic military power, to determine the source of this power, and to accurately describe the limits of the president’s power under the Act. By failing to adhere to the conception of military involvement in domestic law enforcement that the Founders envisioned, the nation is left vulnerable to serious abuses of power for the sake of expediency. This Comment shows that restoring checks on the president’s power under the Insurrection Act will eliminate the possibility of presidential abuse without reducing the usefulness of the Act.