Thread by @steve_vladeck

On Saturday, I did a #thread on the President's power to use the military for domestic law enforcement—incl. the relationship b/w the Insurrection Act and the Posse Comitatus Act:

https://twitter.com/steve_vladeck/status/1266752508577435649?s=20

In 2006, Congress tried to update the IA. Here's a #thread on how it went:

1. As I've noted before, the IA is the name for a series of old statutes enacted between 1792–1871. The language that emerged over this process is remarkably vague and open-ended, and leaves the critical factual determinations entirely to the President:

uscode.house.gov/view.xhtml?pat…

2. More to the point, other than when Title 10 was codified in 1956, the language of the IA hadn't been updated or otherwise amended *since* 1871. After Hurricane Katrina, Congress changed that—rewriting the statute to be much clearer about when it could be used, and for what:

3. Although the 2006 amendment arguably *narrowed* the scope of the IA, it provoked a huge backlash from civil libertarians and governors when it was enacted—at least largely because it made *explicit* some of the military authorities that had long been *implicit* in the IA

4. To that end, with the charge led by the @NatlGovsAssoc, Congress quickly *repealed* the 2006 amendment.

But rather than using that opportunity to *narrow* the scope of the IA or restore some of the old external checks on its use, Congress simply restored the status quo:

5. In other words, Congress in early 2008 returned the IA to the very open-ended and ambiguous language that had provoked the 2006 amendment, doing nothing to narrow its terms or to provide any check on the President's power to determine that the statutory conditions were mt.

6. What *could* Congress have done? It could've provided a sunset (terminating use of the military after 14/30 days w/o express authorization) and expressly authorized judicial review.

Indeed, the precursor to the IA required *both* of these things:

yalelawjournal.org/pdf/Vladeck_Th…

7. Or it could have just clarified exactly what must be true on the ground before the President can use the IA. It did none of these things. And so, as with many other delegations of national security powers, the law today provides the President with (too) much discretion.

/end