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.
Has precedent eroded Congress’s war powers? James Lebovic looks to the various standards of social-scientific inquiry to suggest that an exclusive focus on legal analysis has unnecessarily limited the war powers debate in recent decades.
Lebovic finds that even though Congress appears to defer to the President based on war powers precedent, it is often politics—and not legal precedent—that explains Congress’s deference.
Lebovic finds that assessing rule-based, fact-based, and action-based precedents through social-scientific standards shows that Congress often defers to the President because of the political process. This social-scientific approach stands in contrast to prevalent legal analysis—and Lebovic concludes that today’s practitioners would do well to consider it as they assess the boundaries of congressional war powers.
Shortly after Nazi Germany invaded Poland in 1939, President Franklin D. Roosevelt issued a proclamation of a “limited” national emergency. This proclamation cited no statutory or inherent authority. Alden Fletcher looks to the historical record to suggest Roosevelt’s proclamation was relying on ambiguous statutes that provided for executive power to declare emergencies or take emergency action.
Fletcher finds that even as Roosevelt acted independently to issue an emergency declaration, his administration recognized that such a declaration could be regulated by Congress or reviewed by the courts. Indeed, Fletcher finds historical memos, papers, and briefings showing that the theories advanced by Roosevelt’s Justice Department implicitly accepted a flexible doctrine in part because inter-branch checks were presumed to remain open. This historic approach stands in contrast to today’s Executive Branch practice—and Fletcher concludes that today’s practitioners would do well to remember it.