Guidance for Insurrection Act Reform Issued by Bipartisan Group

Today, a bipartisan group led by Bob Bauer (NYU School of Law and former White House Counsel to President Obama) and Jack Goldsmith (Harvard Law School and former Assistant Attorney General in the George W. Bush administration) issued “Principles for Insurrection Act Reform.” The distinguished group, convened at the invitation of The American Law Institute, is made up of persons with a range of legal and political views who have a rich variety of backgrounds in constitutional law, national security law, and military law, and have held senior positions in government. A complete list of group members can be found below.

Explaining the impetus for the project, Bauer said, “The Insurrection Act is a centuries-old federal statute that authorizes the president to deploy the armed forces and state militias into action within the United States to address rebellion against the federal or state governments, major outbreaks of domestic violence, and the imminent or actual collapse of law enforcement. It is poorly drafted, replete with vague or obsolete language, and it has been clear for decades that this antiquated law needs serious revision.”

“There is agreement on both sides of the aisle that the Insurrection Act gives any president too much unchecked power,” Goldsmith added. “The Principles for Insurrection Act Reform proposes a set of core standards to guide constitutionally sound, bipartisan reform that aims to address the Act’s flaws while reflecting the need for U.S. armed forces to remain available in extreme cases to respond to domestic threats. These Principles are neutral in design and apply to any president’s invocation of the Insurrection Act.”

The Principles propose deleting antiquated terms that lack settled contemporary meaning and strengthening conditions for the Act’s use. The Principles state that “a reformed Insurrection Act should more clearly specify (i) the goal of ensuring enforcement and (ii) the requirement that the deployment be necessary to protect public safety and security.” For example, many states and municipalities now have robust police forces, and the president has access to substantial federal law-enforcement capacity. The Principles suggest that the Insurrection Act be amended to make clear that the president may not deploy the armed forces unless “the violence [is] such that it overwhelms the capacity of federal, state, and local authorities to protect public safety and security.”

The Principles also urge Congress to adopt reporting and consultation requirements, and time-limit constraints, on presidential deployments under the Insurrection Act. In particular, the Principles recommend that the reformed Insurrection Act:

• Require consultation with the governor before deploying troops into any state;
• Require the president to report to Congress, within 24 hours of deployment, on the need to invoke the Insurrection Act and on consultations held with state authorities;
• Limit the president’s authority to deploy troops under the Act to a maximum of 30 days absent renewed congressional authorization; and
• Establish a fast-track procedure for Congress to vote on renewal of presidential authority under the Insurrection Act.

Finally, the Principles state that Insurrection Act reform need not and should not include a provision for judicial review.

“Revising the Insurrection Act in these respects will address the major concerns with the statute,” Goldsmith explained. “The Principles suggest specific, common-sense reforms and are designed to allow members of both parties to find common ground. At the same time, these modest and reasonable changes would be historic—providing necessary checks and balances where none currently exist, before they are ever needed.”

“The Principles are the work product of an extraordinarily distinguished group of public servants and lawyers. While the work product is not ours, the ALI is again proud to have played the role of convener in helping to produce guidance for an important set of possible legislative reforms,” said ALI President David F. Levi and ALI Director Diane P. Wood in a joint statement. “This is the third group that we have helped convene, following one that produced important guidance that contributed to Electoral Count Act reform in 2022, and another this past year that developed a proposed set of professional standards for election law officials. This was a natural next project to undertake as the president’s emergency powers are generally recognized to be vulnerable to abuse.”

Below is the complete list of working group members who unanimously agree that Congress should reform the Insurrection Act as soon as possible, and who worked together to produce these Principles. This does not mean that each member would apply the Principles in the same way in shaping the details of reform legislation.

Bob Bauer is Professor of Practice and Distinguished Scholar in Residence at New York University School of Law. He served as White House Counsel (2009-2011), as Co-Chair of the Presidential Commission on Election Administration (2013-2014), and as Co-Chair of the Presidential Commission on the Supreme Court of the United States (2021).

James W. Crawford III, Vice Admiral, JAGC, U.S. Navy (Retired), was appointed by President Obama as the 43rd Judge Advocate General of the Navy (2015-2018). He served thirty-four years of active duty that included service as the principal military legal counsel to the Secretary of the Navy and Chief of Naval Operations and as the Department of Defense Representative for Ocean Policy Affairs (REPOPA). From 2020 to 2023, he was president of Felician University, a Franciscan Catholic university in New Jersey.

Mary DeRosa is a Professor from Practice at Georgetown University Law Center. She served as Deputy Counsel to the President and Legal Adviser to the National Security Council (2009-2011), as Chief Counsel for National Security for the Senate Judiciary Committee (2007-2009), as Legal Adviser and Deputy Legal Adviser to the National Security Council (1997-2000), and as Special Counsel to the General Counsel at the Department of Defense (1995-1997).

John Eisenberg is a national-security and white-collar attorney. In the Trump Administration, he served as the Legal Advisor to the National Security Council, Assistant to the President, and Deputy Counsel to the President. In the George W. Bush Administration, he served as a Deputy Assistant Attorney General in the Office of Legal Counsel and as an Associate Deputy Attorney General in the Department of Justice. He was a partner at Kirkland & Ellis from 2009 until 2017.

Courtney Simmons Elwood served as General Counsel of the U.S. Central Intelligence Agency (2017-2021), and as Associate Counsel to the President, Deputy Counsel to the Vice President, and Deputy Chief of Staff and Counselor to the Attorney General (2001-2007).

Jack Goldsmith is the Learned Hand Professor at Harvard Law School. He served as Assistant Attorney General, Office of Legal Counsel (2003-2004), and as Special Counsel to the General Counsel of the Department of Defense (2002-2003).

Jeh Charles Johnson is a partner in the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP who previously served as Secretary of Homeland Security (2013-2017), General Counsel of the Department of Defense (2009-2012), General Counsel of the Department of the Air Force (1998-2001) and as an Assistant U.S. Attorney for the Southern District of New York (1989-1991).

Bruce MacDonald is a retired United States Navy vice admiral who served as the 40th Judge Advocate General of the United States Navy from July 2006 to August 2009. In March 2010, he was appointed to the Senior Executive Service by Secretary of Defense Robert Gates and served for three years as Convening Authority for the Office of Military Commissions.

Mark Martins is a retired Army brigadier general and a private practitioner of law in Washington, D.C. Before retirement from the military in 2021, he served in Kosovo (1999), Iraq (2003, 2004, 2006-2008), and Afghanistan (2009-2011), and as chief prosecutor for proceedings under the Military Commissions Act (2011-2021).

Michael B. Mukasey served as a U.S. District Judge for the Southern District of New York (1988-2006) and as the 81st Attorney General of the United States (2007-2009).

Download the Principles for Insurrection Act Reform.

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About The American Law Institute

The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and improve the law. The ALI drafts, discusses, revises, and publishes Restatements of the Law, Model Codes, and Principles of Law that are influential in the courts and legislatures, as well as in legal scholarship and education. By participating in the Institute’s work, its distinguished members have the opportunity to influence the development of the law in both existing and emerging areas, to work with other eminent lawyers, judges, and academics, to support the rule of law and the legal system , and to contribute to the public good.

The Principles for Insurrection Act Reform project was not produced through the typical ALI bicameral process, which requires approval by both ALI Council and membership, and therefore cannot be considered the official work of the Institute.

For more information about The American Law Institute, visit www.ali.org.