Ex-Officials Urge Curbing Presidential Power to Deploy Troops on U.S. Soil

A bipartisan group of former senior national security and legal officials, including veterans of the Trump administration, are urging lawmakers to impose new limits on a president’s power to deploy federal troops on domestic soil.

While it is generally illegal to use the U.S. military for domestic law enforcement purposes, a law called the Insurrection Act grants presidents emergency power to use troops to restore order when they decide a situation warrants it.

Legal analysts for decades have proposed overhauling the act, which President George Bush, at the request of California’s governor, last invoked in 1992 to suppress riots in Los Angeles. But the weakness of existing constraints has taken on new salience in the era of former President Donald J. Trump, who has vowed to unilaterally send troops into Democratic cities if he wins the 2024 election.

Many other proposed reforms to executive power after Mr. Trump’s turbulent term were blocked by Republicans in Congress, who portrayed them as unnecessary partisan swipes. Seeking to avoid that fate, the proponents of imposing new limits on the Insurrection Act said their point was not about Mr. Trump in particular, but rather that current law gives all presidents too much unfettered power.

The set of principles unveiled on Monday are ones that the group hopes lawmakers of both parties could endorse. Republican signatories included Courtney Simmons Elwood, the general counsel of the C.I.A. under Mr. Trump; Michael Mukasey, a former federal judge who was attorney general in the Bush administration; and John Eisenberg, the top lawyer at the National Security Council in the Trump White House.

Mr. Eisenberg, who also worked on issues involving presidential emergency power in the Bush administration after the Sept. 11, 2001, attacks, said he saw the project as a matter of good government.

“This is something of great importance regardless of what party you are in because, obviously, it is an area that can abused,” Mr. Eisenberg said. “If the triggers, for example, are too vague, the risk is that it can be used in circumstances that do not really warrant it. So it is important to tighten up the language to reduce that risk.”

The recommendations include tightening the circumstances in which a president may invoke the Insurrection Act by eliminating vague, antiquated terms and clarifying that for domestic violence to warrant calling in federal troops, it must rise to a level that overwhelms local law enforcement.

The group also said there should be a statutory limit on how long such a deployment could last, after which a president would have to remove troops unless Congress had voted to renew authority to continue the operation. It suggested a maximum of 30 days.

Some of those principles align with aspects of legislation introduced in 2020 by Senator Richard Blumenthal, Democrat of Connecticut. Congress did not pass that bill, but Mr. Blumenthal said in an interview last week that he was revising a version with Representative Jamie Raskin, Democrat of Maryland, which they hope to unveil soon and to attach to the annual must-pass defense bill.

“Right now, the law gives the president a blank check on the use of military power, which is a tool of tyranny,” Mr. Blumenthal said. “It gives the president virtually unchecked and unlimited power to use it against lawful dissent or other expression of opinion in ways that violate our basic rights. And so whoever is president, Republican or Democrat, should be compelled to come to Congress after a specific defined period of time.”

The principles were developed by a working group hosted by the American Law Institute, a nonpartisan group that proposes improvements to the law, guided by Jack Goldsmith, a Harvard Law School professor and former top Justice Department lawyer in the Bush administration, and Bob Bauer, a New York University law professor and former White House counsel in the Obama administration. (He is also President Biden’s personal lawyer, but said in an interview that he was weighing in on the act only on his own behalf.)

Also under the banner of the institute, Mr. Goldsmith and Mr. Bauer — along with Mr. Mukasey and Ms. Elwood — advised a bipartisan group of lawmakers who in 2022 pushed through an update to another old law, the Electoral Count Act, that governs how Congress counts Electoral College votes.

In 2022, New York University’s Brennan Center for Justice proposed changes to the Insurrection Act to the House committee investigating the Capitol riot.

While Mr. Blumenthal’s 2020 bill and the Brennan Center’s proposal both also called for establishing a new court process assessing whether a president’s invocation of the Insurrection Act was legally justified, the principles unveiled on Monday say a reform bill should not include that step. They note instead that judicial review is likely already available under existing law, and that the Supreme Court has said judges should show deference to a president’s determination that the conditions are met.

Professor Goldsmith, emphasizing he was speaking only for himself, noted that during the push to reform the Electoral Count Act, an initial proposal included a provision centered on judicial review. It prompted Republican opposition and was essentially dropped. Adding such a provision to any Insurrection Act reform bill raised similar risks, he argued.

“We’re trying to accomplish achievable Insurrection Act reform, and judicial review in my view might be a serious sticking point to reform, which might not be worth the fight since it is already available to some extent and might not accomplish much anyway,” he said.

After some demonstrations against police violence in 2020 degenerated into riots, Mr. Trump had an Insurrection Act order drafted to crack down on protesters in Washington. Military leaders resisted putting active-duty troops on the streets, and Mr. Trump did not sign the order.

But as the presumptive Republican nominee in the 2024 election, Mr. Trump has raised anew the prospect of using federal troops on American soil. His top immigration policy adviser has suggested that his administration would invoke the act to use soldiers as immigration agents near the border. And at a rally in Iowa last year, Mr. Trump said he would unilaterally send troops into the streets of Democratic-run cities.

“You look at any Democrat-run state, and it’s just not the same — it doesn’t work,” Mr. Trump said, calling cities like New York, Chicago, Los Angeles and San Francisco crime dens. “We cannot let it happen any longer. And one of the other things I’ll do — because you’re supposed to not be involved in that, you just have to be asked by the governor or the mayor to come in — the next time, I’m not waiting.”

The group endorsing an overhaul of the Insurrection Act also includes three retired top military lawyers: Brig. Gen. Mark Martins, the former chief prosecutor of the Guantánamo military commissions; Vice Adm. James Crawford, a former top legal adviser to the Joint Chiefs of Staff; and Vice Adm. Bruce MacDonald, a former top naval judge advocate general.

It also included two former Democratic national security lawyers from the Obama administration: Mary DeRosa, a former National Security Council legal adviser, and Jeh Johnson, a former Pentagon general counsel and Homeland Security secretary.