Tag Archives: Constitutional Law

An Army Turned Inward: Reforming the Insurrection Act to Guard Against Abuse

Elizabeth Goitein and Joseph Nunn argue that the Insurrection Act is one of the most powerful and wide-ranging authorities available to the President of the United States. The Act authorizes the president to deploy US armed forces and the militia to suppress insurrections, quell civil unrest and domestic violence, and otherwise enforce the law in the face of obstruction. However, despite the wide-reaching powers it grants, the criteria set forth in the Act for its utilization does little in the way of imposing any meaningful constraints.

Compounding the problem is the fact that neither Congress nor the courts share any responsibility for the invocation of the Act—Congress has neither oversight nor approval, and courts have proved reluctant to question the president’s judgment on the deployment of troops in domestic emergencies. The Act therefore functions outside of the fundamental system of checks and balances, increasing the danger that the Act will be invoked without sufficient grounds.

While previous invocations of the Act protected marginalized communities, recent events—particularly the Jan. 6, 2021, attack on the US Capitol—have raised concerns about under what circumstances the Insurrection Act may be invoked, and against whom. The authors trace the history of the Insurrection Act from the early days of the country to the present, analyzing its strengths and weaknesses, and particularly highlighting its potential for abuse. They also detail a proposal for reforming the Insurrection Act, modifying it in a way that would better comply with American democratic ideals.

National Security and Access, a Structural Perspective

Public access to court proceedings is a constitutional dictate and yet, since Sept. 11, 2001, the executive branch has pushed for secrecy to shroud the courtroom in the name of national security. Too often, courts have acquiesced despite the fact that access plays a crucial role in checking inter-branch conflicts, providing the electorate the information it needs to function and guaranteeing a fair trial and policing executive abuses.

Matthew L. Schafer attempts to reset the discussion on the right of access by taking an interest-based approach informed by the role that access plays throughout the Constitution. He proposes that access is not simply meant to ensure that all parties act properly or that all witnesses tell the truth. Rather, access is meant to ensure that our constitutional system works as intended by advancing the interests the Founders thought important.