A MARTÍNEZ, HOST:
Well, let's take a closer look now at what the Insurrection Act entails with Elizabeth Goitein. She's a senior director at the Brennan Center for Justice and a leading expert on presidential emergency powers. So, Elizabeth, if the president invokes the Insurrection Act, tell us what exactly happens. What would that look like?
ELIZABETH GOITEIN: Well, he would issue a proclamation, and the proclamation should order people to disperse. That's part of the law. But at that point, he can deploy active-duty armed forces, or he can federalize National Guard forces. So in Minnesota, he could remove the National Guard from the command and control of the governor, put the National Guard under federal command. And he can deploy the troops into Minnesota, into Minneapolis. And once the troops are on the ground, because the Insurrection Act is widely understood to be an exception to the Posse Comitatus Act - that's the law that normally prohibits federal armed forces from engaging in civilian law enforcement - they would be able, at least in theory, to engage in activities like arrests or searches or seizures. But of course, that would depend on the rules that they were given and the parameters that were set for the deployment.
MARTÍNEZ: OK. And by activating the military, I mean, we're talking all the equipment that comes with it - right? - possibly tanks, I mean, plane - I mean, we're talking anything that the active military would use anywhere else.
GOITEIN: Absolutely. And really, the constraints on that would be norms, right? It would be historical norms in terms of how heavy-handed the deployment would be and what it would look like. Unfortunately, norms don't really seem to constrain this president.
MARTÍNEZ: And you mentioned federalizing the National Guard, which means the governors of any state would have no say at all anymore on the National Guard.
GOITEIN: That's correct. They would have no say in terms of the guard being federalized, being removed from their command and control. Now, of course, states could file lawsuits, as they have when - or as they did in Los Angeles, in Portland and in Chicago when the president federalized the National Guard or attempted to federalize the National Guard in those places. And as we've seen, it's possible for courts to enjoin those federalizations, to basically say that they're illegal and they cannot happen. But in the first instance, when the president invokes the Insurrection Act, he can remove the state National Guard from the command and control of the governors.
MARTÍNEZ: Are there any guidelines or any way to know in the Insurrection Act what exactly an Insurrection Act is? In other words, if this, then that.
GOITEIN: There are conditions that have to be met for the president to invoke the Insurrection Act. He can't invoke it whenever he wants. There have to be - there are criteria, substantive criteria. Unfortunately, the law, even though it was intended to provide a narrow exception to the general rule that the military does not do law enforcement, it was written in very vague and archaic terms that - or at least now they're archaic - that really don't provide a lot of clear constraints or at least seem to give the president a good amount of discretion.
The Department of Justice, however, has long interpreted the law as being limited by the Constitution and by tradition. And Department of Justice lawyers have taken the position that the law should be invoked only in situations where a state requests assistance to put down an insurrection, where there is state defiance of a federal court order, or where state and local law enforcement have completely broken down. So the standards for deployment, as the law has been interpreted by the executive branch, at least in the past, is a pretty demanding standard, actually. And the law should only be used - again, this is what the Department of Justice has said - as a last resort.
MARTÍNEZ: OK. Now, is the Insurrection Act subject to judicial review? I mean, what would it take to reverse it, if possible?
GOITEIN: Yeah. I mean, that's the million-dollar question. There is a case from 1827, a very old case that suggests that - or has language in it suggesting that courts cannot review the president's decision to invoke the Insurrection Act. But there are a lot of ways in which the facts of that case are very different from the kind of deployment that we're talking about here. In particular, that was during the 1812 War, so there was a foreign invasion happening. And since that case, there have been other Supreme Court cases that indicate that there are exceptions to this rule of, you know, non-reviewability in cases where the president acts in bad faith or where he exceeds a permitted range of honest judgment. So even under the most deferential standard, and that will really be up to the courts to decide in these unprecedented circumstances, they're - the courts should be able to step in if the president crosses a line.
MARTÍNEZ: Elizabeth Goitein is senior director of the Liberty and National Security Program at the Brennan Center for Justice. Elizabeth, thank you for explaining this for us.
GOITEIN: Thanks very much for having me. Transcript provided by NPR, Copyright NPR.
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