Because the Insurrection Act is out-of-date and was a law Trump once considered using to stop the counting of the 2020 presidential electoral college votes, Representative Danny K. Davis (D-7th) agreed with the Brennan Center for Justice (BCJ) that it is “absolutely” time to overhaul that Act.
Davis was referring to the BCJ’s report released on Monday, September 26, that concluded “it’s time for a change,” given that it has been hundreds of years since the Insurrection Act was overhauled.
“I think that times change, new information becomes available and there are loopholes in legislative enactments based upon how far something could go at the time that it happened,” said Davis.
“But the good thing that happened in the law is whatever legislators decide that law is, and there always are opportunities to make laws different from what it might be and have it become something else.”
Davis gave as an example Roe v. Wade, which “has been law, but there are people who wanted to change Roe v. Wade and to some degree they were able to do that. I think that looking at the Insurrection Act in a very serious way a decision could be made.”
Davis added, “The Insurrection Act provides the president certain kinds of power. Debates and discussions are always important. We not only have the opportunity but also the responsibility to do that.”
When asked if he feels it is time to overhaul the Insurrection Act, Davis said, “I do indeed. I think in a democracy whatever the people decide is the law, and whatever they decide, there is no authority beyond the will of the people. I think we have to
figure out ways to maximize democracy and democratic principles not in protection of any unit or in any body.
“The Supreme Court is supreme, but it doesn’t have to be right. Does it reflect the will of the people? Is it supreme? Does it always project and consecrate the will of the people?
“That is really what democracy means,” Davis said.
“Protecting democracy should be our highest order, and there is nothing that should succeed, nothing that overrules, nothing greater than democracy.”
In agreement is Bishop Tavis Grant, national executive director for the Rainbow PUSH Coalition.
“The Insurrection Act should and must be overhauled. The attempt to disrupt, if not overthrow, our government on January 6 was no accident.
“The methodical and intricate networking of anti-democracy actors who stopped at nothing then, and still currently are using every measure available to tear this country apart, must be confronted with the legislative power afforded in the United States Constitution, as well as laws that correct and right the wrongs of the past,” Grant said.
“As a tenured member of Congress, Congressman Davis has his eye on the quintessential means by which the insurrectionists saw as a nuclear option. The act as is has vagueness and is void of the exactness necessary to ensure no matter who’s in office,” Grant said
“Though it would have been next to impossible, the insurgents and the insurrectionists were able, due to a massive misinformation campaign that was bolstered by highly-trained surrogates and social media influencers who weaponized news networks, marshaled a movement that has thrown our nation into a cultural civil war.
“No one in the Executive Branch should be able to invoke powers that are not sanctioned by the United States Constitution,” Grant stated.
“We must reform the Insurrection Act to ensure that we achieve the ultimate, which is to create a more perfect union.”
And that is the concern of the BCJ report, which called for the protection of America’s democracy.
When the Insurrection Act was last “overhauled” by Congress, the report said, “Less than a decade had passed since the Civil War. Federal troops were garrisoned in former Confederate states, and insurrectionists remained a threat.
“The White League, the Knights of the White League, the Knights of the White Camelia and, most infamously, the Ku Klux Klan, terrorized communities,” BCJ officials said.
Back then, the BCJ report said, law enforcement was “rudimentary” and that some major U.S. cities still lacked a formal police force. It was then that Congress handed the president sweeping powers to deploy the military to enforce federal law.
When Elizabeth Goitein, senior director of Liberty and National Security for the BCJ and who is also a nationally-recognized expert on presidential emergency powers and government surveillance, along with Joseph Nunn, BCJ’s counsel, appeared before the U.S. January 6 Committee, they pointed out how outdated the Insurrection Act is today.
The pair explained how there are still “dangerously few checks on the president’s emergency powers” and told the committee it is time to overhaul the Insurrection Act.
According to the BCJ report, Trump had reportedly considered invoking the Insurrection Act twice. In fact, Trump, in a June 2020 statement from the White House, threatened to “deploy the United States military and quickly solve the problem” of protests.
Weeks after the 2020 election, the BCJ report said Trump’s allies urged him to invoke the Insurrection Act.
According to the BCJ report, Representative Marjorie Taylor Greene (R-GA) reportedly told the White House chief of staff that perhaps “the only way to save our Republic is for Trump to call for Marshall [sic] Law.”
The BCJ report stated that under the Insurrection Act, as currently written, Trump could have prevented Congress from meeting to certify his defeat.
Trump, the report said, “Could have done worse. His supporters in white nationalist groups hoped that Trump would use the law to deputize them as his personal military force.”
The report added, “Given how far he went to subvert the rule of law in January 2021, it’s almost surprising that Trump didn’t invoke the Insurrection Act.”
The report was referring to the 12 noon January 6 “Save America” rally and how Trump told his supporters lies about the election and how it was allegedly rigged.
Trump said, “If you don’t fight like hell, you’re not going to have a country anymore.”
The BCJ report suggested there must be a balance in reforming the Insurrection Act to maintain executive flexibility when military force is truly justified, while preventing abuses “like those contemplated by Trump.”
When a president invokes the Insurrection Act, it expands presidential powers; however, the BCJ report concluded that “it should not render him quasi-omnipotent.”
Rather, the reform law “should prevent the president from suspending habeas corpus or allowing the military to entirely displace civilian authority.”
Given the power of this Act, the BCJ report concluded, “There must be robust checks. The president, secretary of state and attorney general should jointly communicate to Congress the conditions that justify invoking it.”
And even then, the report made it clear that “after seven days, the authority should expire and without congressional authorization, and the availability of judicial review is a must.”
Given what transpired on January 6, 2021, the BCJ report concluded, “This moment is an opportunity for meaningful reform.”