The Insurrection Act Joyce Vance Apr 3 Can Trump shut down protests using the military under the Insurrection Act? What would it take? The answer is complicated, but as more and more protests take place, understanding that legal terrain has become increasingly important. While invocation of the Act doesn’t look imminent, it’s always good to understand the law in advance. That’s our mission tonight. First, a reminder about the importance of peaceful, nonviolent protests, the approach successfully adopted by Dr. Martin Luther King, Jr., to fuel the civil rights movement in the 1960s. When Dr. King organized sit-ins in public spaces in Birmingham, Alabama, in 1963, the images that were projected across the country showed white Birmingham police officers turning pressurized hoses and aggressive police dogs against peaceful demonstrators. Peaceful protests forced Birmingham’s entrenched, racist police chief Bull Connor to resign. Public spaces like lunch counters and bus stations in Birmingham were ultimately desegregated. The thing is, peaceful protest works. It can move mountains. It’s also essential, in a moment when the Trump administration will be alert to seize on anything even approaching violence to tamp down on protests that are getting underway and going national, to make sure that protests stay peaceful. In 2020, as Black Lives Matter protests spread across the country, Trump threatened he’d use the military to bring them under control. “We have the greatest country in the world,” the president declared. “We’re going to keep it safe.” He doesn’t need any excuses. 2020 BLM Protests in Schenectady, New York. Photo by Lori Van Buren/Albany Times Union via Getty Images After peaceful protesters were tear-gassed to clear Lafayette Square in Washington, D.C., so Trump could have a political photo opportunity, appetite for these overreaches seemed to diminish, although the threats continued periodically. But memories dim, and here we are in 2025 with growing discontent towards a president who has raised taxes and cut jobs, all without any apparent benefit to the American people. Trump might try to take advantage of minor incidents, or even plants who engage in violence, to impose the Insurrection Act and use the military to put a halt to Americans who are out on the streets exercising their First Amendment rights. Could Trump turn out the American military against protestors if something like that were to happen? Normally, the Posse Comitatus Act prohibits the use of the military for domestic law enforcement. It explicitly outlaws using the armed forces to enforce the law within our borders, unless that action is expressly authorized by the Constitution or an act of Congress. Enter the Insurrection Act, which permits a president to deploy the military in American cities and on our streets in very narrow circumstances involving insurrection, rebellion, or extreme civil unrest. In those circumstances, the military can only be used for “emergency needs” towards the goal of reestablishing civilian control as quickly as possible. But, as the Brennan Center has explained, “The problem is that the Insurrection Act creates a giant loophole in the Posse Comitatus Act rather than a limited exception to it.” The Act was adopted in 1792, and it hasn’t been updated since 1874. Its language is broad and gives presidents plenty of discretion to, for instance, use the military to arrest American citizens engaged in protest, if a president calls what’s going on an insurrection, rebellion, or civil unrest. In an 1827 case, Martin v. Mott, the Supreme Court ruled that it is up to the president to decide whether the Insurrection Act should be invoked and that the courts may not review his decision. A president inclined to absorb power from a vacuum into his own hands has plenty to work with, as Trump has done, claiming we are being invaded by the Venezuelan Tren de Aragua gang to justify invoking the Alien Enemies Act and deporting people. So here we are. Concerns about the Insurrection Act don’t mean that Americans should obey in advance, giving up their right to assemble and protest peacefully. But it does mean we need to understand the way the Trump administration could respond to organized protests as we head toward Saturday, April 5, when many Americans plan to participate in protests that are being organized locally but coordinated nationally. It helps us understand why peaceful protest, which is proven successful, is also essential. In July of 2024, Kevin Roberts, president of the conservative Heritage Foundation and one of the chief architects of Project 2025, proudly announced on Steve Bannon’s podcast, “We are in the process of the second American Revolution, which will remain bloodless if the left allows it to be.” Donald Trump disclaimed all knowledge of Project 2025 shortly after reporting on that came to light. But we have learned since that Project 2025 was always the plan, and it’s being implemented now. We are forewarned. George Orwell wrote 1984: “One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship.” We still have a Constitution, and we should each find the best way for us, personally, to ensure it stays that way. We have the obligation to find ways to speak up, even if we fear imposition of the Insurrection Act. Be like Cory Booker. Be willing to stand up for what you believe in. In our country, the military has long been prohibited from domestic law enforcement because of the fear that its involvement would put us on a path towards tyranny. They defended their vision of government against claims made by anti-federalists that the country was too big, that a president would become a dictator, and that a national army would crush any possibility of dissent. In Federalist No. 10, James Madison defended the new Constitution against claims it would permit a president to become a dictator with a national army at his disposal to crush any possible dissent. He wrote that the system of government under consideration contained checks and balances to protect individual liberties. He argued that the legislative branch and the judicial branch would act as checks on the executive and there would be a balance of power shared between states and the federal government. Donald Trump, quite clearly, does not agree. He continues to try to give himself all the power of government, much as some of our early leaders feared a president might do. It is up to each of us to decide how we will meet this moment. For some of us, that will mean showing up to Saturday’s “Hands Off” protest events. For others, it will mean continuing to confront elected officials with their obligation to face the challenges of this moment head-on. Others will be preparing to run for office, support a candidate, or educate their children about the importance of voting. Protest can take many forms. But what’s increasingly clear is that Trump’s effort to create a culture of fear has not silenced the opposition. Americans are, indeed, ready to save the Republic. Reading Civil Discourse is a form of protest, too. Thank you for being here with me! We’re in this together, Joyce

 

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George Orwell and The Founding Fathers

Joyce Vance Dec 3

You may want to prepare yourself for the coming Trump administration by rereading George Orwell’s “1984” if it’s been a while. I know many of you, like me, read it at the beginning of Trump’s first term in office. For me, it was right after Kellyanne Conway coined the term “alternative facts” in response to Trump’s lies about the size of his inauguration day crowd. Trump’s first press secretary Sean Spicer (who only lasted six months in the job), quickly backed up Trump’s obvious lie.

The parallel to Orwell’s book, which is about the manipulation of truth and facts as an aid to government control in a totalitarian society, was unavoidable. In “1984,” the dictator, Big Brother, rules through his cult of personality, perpetuated by the “Thought Police.” Independent thinking is no longer allowed. 2+2=5. Trump’s crowd size, we were told, was enormous—and his followers accepted it despite the proof before their own eyes that he was lying. The satire hit presciently close to the mark.

“For, after all, how do we know that two and two make four? Or that the force of gravity works? Or that the past is unchangeable? If both the past and the external world exist only in the mind, and if the mind itself is controllable – what then?”

What happens when people give up the right to think for themselves? 1984. It’s a warning, not just an instruction manual for would-be dictators.

“Every record has been destroyed or falsified, every book rewritten, every picture has been repainted, every statue and street building has been renamed, every date has been altered. And the process is continuing day by day and minute by minute. History has stopped. Nothing exists except an endless present in which the Party is always right.”

In July of this year, Kevin Roberts, president of the Heritage Foundation, a conservative think tank, and one of the chief architects of Project 2025, proudly announced on Steve Bannon’s podcast, "We are in the process of the second American Revolution, which will remain bloodless if the left allows it to be.” What happened after that stunning pronouncement? Trump disclaimed all knowledge of Project 2025. Within 24 hours, if even that, the news cycle moved on. Four months later, Americans returned Donald Trump to office.

“One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship.”

That is how it begins. Of course, as in 2016, saying this out loud provokes dismissive laughter and claims that anyone concerned about dictatorship is being dramatic. “It’s about the price of gas and groceries,” people—even those who didn’t vote for Trump—say. Now that the final vote tallies are in and we know how slim Trump’s margins were, it’s become popular to point out that he doesn’t have a mandate—as though that matters to Trump.

“And if all others accepted the lie which the Party imposed—if all records told the same tale—then the lie passed into history and became truth. 'Who controls the past' ran the Party slogan, 'controls the future: who controls the present controls the past.’”

“In a way, the world−view of the Party imposed itself most successfully on people incapable of understanding it. They could be made to accept the most flagrant violations of reality, because they never fully grasped the enormity of what was demanded of them, and were not sufficiently interested in public events to notice what was happening. By lack of understanding they remained sane. They simply swallowed everything, and what they swallowed did them no harm, because it left no residue behind, just as a grain of corn will pass undigested through the body of a bird.”

How did people like Orwell and Margaret Atwood, who wrote “The Handmaid’s Tale,” get it so right from a distance of years? Atwood has even said she stopped writing “The Handmaids Tale” repeatedly because it seemed “too far-fetched.” But the Founding Fathers saw this possibility too, and they tried to create a system of government that would resist a slide into monarchy or dictatorship.

To encourage the adoption of the new Constitution, Alexander Hamilton, James Madison, and John Jay wrote The Federalist Papers, 85 essays, from 1787 to 1788. They defended their vision of government against claims made by anti-federalists that the country was too big, that a president would become a dictator, and that a national army would crush any possibility of dissent.

To protect against those prospects, Madison argued in Federalist No. 10 that the system of government under consideration contained checks and balances to protect individual liberties. The legislative branch and the judicial branch would act as checks on the executive, and there would be a balance of power shared between states and the federal government.

Those are the checks that Trump wants to undo, whether it is through the substantive plans contained in Project 2025 that consolidate and centralize the powers of government in the presidency, or nominees for key positions in the cabinet whose loyalty is to Trump, not the Constitution.

Monday afternoon, Senators Blumenthal and Warren wrote to President Biden, urging him to take action designed to prevent, or at least call attention to, potential efforts by Donald Trump to quell domestic protest using the military, precisely the type of thing the Founding Fathers were concerned about.

“We write to urge you to issue a policy directive that prohibits the mobilization of active duty military or federalizing National Guard personnel to be deployed against their fellow Americans unless specifically authorized. The Posse Comitatus Act ‘outlaws the willful use of any part of the Armed Forces to execute the law unless expressly authorized by the Constitution or an act of Congress.’”

The senators point to the narrow exception to the prohibition against using the military for domestic law enforcement under the Insurrection Act, which, they explain, “allows the President to deploy military personnel within U.S. borders under narrow circumstances of insurrection, rebellion, or extreme civil unrest,” but even then, use of the military is “strictly” limited “to emergency needs” and the purpose behind its use must be reestablishing civilian control as soon as possible. The senators asked President Biden to issue guidance that would clarify the Insurrection Act can only be used when state or local authorities are overwhelmed and that even then, the President “must consult with Congress to the maximum extent practicable before exercising this authority, as well as transmit to the Federal Register the legal authorities.”

Why are Senators Warren and Blumenthal writing this letter, and why are they writing it now? They explain that it’s because “President-elect Trump’s comments have indicated he could invoke the Insurrection Act ‘on his first day in office.’ He has called his political opponents ‘the enemy from within’ and said they ‘should be very easily handled by — if necessary, by National Guard, or if really necessary, by the military.’’ They point out that Vice President-elect J.D. Vance said that Trump would use force against Americans when asked about it and refer back to Trump’s efforts to use the military against protestors during his first term in office. They are concerned that members of the military need guidance to understand that despite the Supreme Court’s presidential immunity decision, there are still limits on presidential power because, “unaddressed, any ambiguity on the lawful use of military force, coupled with President-elect Trump’s demonstrated intent to utilize the military in such dangerous and unprecedented ways, may prove to be devastating.”

It is shocking, but not surprising, that an effort to educate the public and members of the military about the limits on a president’s use of the Insurrection Act is necessary as we approach Trump 2.0. But even without in-depth understanding of the law, we all know that in this country, the military cannot be turned loose on citizens who have assembled to exercise their First Amendment rights. If Trump does that, it may well be too late. The Senators are correct that every possible step must be taken to prevent it from happening in advance.

Back to “1984”: “In the end the Party would announce that two and two made five, and you would have to believe it. It was inevitable that they should make that claim sooner or later: the logic of their position demanded it. Not merely the validity of experience, but the very existence of external reality, was tacitly denied by their philosophy. The heresy of heresies was common sense. And what was terrifying was not that they would kill you for thinking otherwise, but that they might be right. For, after all, how do we know that two and two make four? Or that the force of gravity works? Or that the past is unchangeable? If both the past and the external world exist only in the mind, and if the mind itself is controllable—what then?”

In other words, stay informed. That is our most fundamental duty as Americans right now. Don’t look away. Don’t hope it won’t happen. Educate yourself, and prepare for the days ahead. “Do not obey in advance,” Yale Professor Tim Snyder’s advice, has become something of a mantra these days. It rests on the premise that dictators demand obedience. If it is not given voluntarily, if there are protests, even completely peaceful and lawful ones—the right of assembly granted to us by the Constitution—the dictator will come at us with his military. As Atwood wrote, “Nothing changes instantaneously: in a gradually heating bathtub you'd be boiled to death before you knew it.” Let’s not be the ones who get boiled because they can’t be bothered to pay attention.

We’re in this together,

Joyce

 

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Project 2025: It's On (Predictably)

Joyce Vance Nov 23

Before Bill Barr became Donald Trump’s third attorney general, he circulated a memo that was more or less an audition tape for the job he ultimately got. That memo reached both the White House Counsel’s Office and Main Justice. In it, Barr argued in favor of what had previously been a fringe theory of a powerful “unitary executive,” in other words, a president able to consolidate power at the expense of the other two branches as a very powerful leader. The writing was on the wall with Barr’s selection, although the Supreme Court cast it in stone when the conservative majority signed off on the view that presidents couldn’t be criminally prosecuted as long as the crimes they committed fell under the umbrella of official acts. Even Bill Barr would have never dreamed of arguing the president could use SEAL Team Six to assassinate a political rival and walk away with no consequences. Now, the Supreme Court says it’s so.

That’s the context that’s essential for understanding Trump’s Friday evening “nomination” (if you can call a social media announcement that) of Russell Vought to lead the Office of Management and Budget (OMB). Vought is a proponent of a powerful executive and of restructuring our institutions to facilitate a government that veers toward the monarchical and away from the democratic. He was one of only four out of forty-four of Trump’s cabinet officials from his first administration who said they’d support him this time.

Vought entered OMB at the start of Trump’s first administration and was confirmed as its director in July 2020. In the archive of his official biography, his role is described like this: “he is responsible for overseeing the implementation of the President’s policy, management and regulatory agendas across the Executive Branch.” OMB is a powerful agency, and its director is, in a very real sense, a president’s right-hand man. Among the job experience Vought touts in his bio are his seven years as Vice President of Heritage Action for America, a sister organization to the Heritage Foundation, which, as readers of Civil Discourse are well aware, is where Project 2025 was incubated.

The website for the Center for Renewing America lists Vought as its President. Jeff Clark, the DOJ appointee who tried to use the Justice Department to do Trump’s bidding and spread the Big Lie following the 2020 election is a fellow at the Center, as is Ken Cuccinelli, who wrote the DHS chapter of Project 2025. Its mission is “to renew a consensus of America as a nation under God with unique interests worthy of defending that flow from its people, institutions, and history, where individuals’ enjoyment of freedom is predicated on just laws and healthy communities.” The Project 2025 website lists the Center as one of the 100 groups that are part of its advisory board.

Now Vought, godfather to Project 2025 and author of its chapter on OMB, will be in charge of administering policy in the next Trump Administration. So much for Trump’s efforts—back when reporting about Project 2025 led to enormous public concern and seemed poised to shift the tide against him— to distance himself from the project. At the time, he disavowed any knowledge of or agreement with the plan, but the claims felt hollow.

In fact, we discussed Trump’s ties to Project 2025, despite his claim that he knew nothing, back in August. Here’s the linchpin, showing that Trump was being disingenuous in that post:

“Tonight, the Washington Post reported that in April 2022, Trump and Heritage Foundation President Kevin Roberts, the front man for Project 2025, took a 45-minute private plane flight together to get to a Heritage Foundation conference where the former president was one of the speakers. Trump told the audience that the Heritage Foundation was ‘going to lay the groundwork and detail plans for exactly what our movement will do.’

Project 2025 is a wrap. It’s locked, loaded, and ready to go. If you believe it’s about to disappear or that Trump won’t use any of it, I have some swampland in Florida for you.

How do we know that? Because Kevin Roberts told us so. After Trump made his threat, and Paul Dans, who had been running the Project at Heritage, stepped down, Roberts said on Twitter that ‘Project 2025 has completed exactly what it set out to do.’”

Last August, Vought claimed that Trump had “blessed” Project 2025 and that it was ready to be put into action. We know this only because British journalists secretly recorded him making those claims; they were not intended for people like us. If confirmed, Vought will be in a position to make that reality.

Vought wrote the chapter of Project 2025 on “The Executive Office of the President of the United States,” which includes OMB. To give you a sense of its prominence, it’s Chapter 2, positioned in the first section of the document that is entitled “Taking The Reins of Government.” Vought writes, “The great challenge confronting a conservative President is the existential need for aggressive use of the vast powers of the executive branch to return power— including power currently held by the executive branch—to the American people.” But when has Donald Trump ceded power to anyone? And we have seen what happens when conservatives “send power away from Washington and back to America’s families, faith communities, local governments, and states.” American women end up as second-class citizens, unable to access reproductive care even when it’s necessary to save their lives.

We get a sense of how Vought would deploy OMB’s resources to enforce Trump’s policies. He writes, “OMB assists the President in the execution of his policy agenda across the government by employing many statutory and executive procedural levers to bring the bureaucracy in line with all budgetary, regulatory, and management decisions.” In other words, anyone—agency or otherwise—that doesn’t fall in lockstep with Trump’s policy dictates will find themselves stripped of federal funding and other resources and assistance. Trump tried that with Seattle Mayor Jenny Durkan during his first term in office when she refused to relinquish her city’s sanctuary status for migrants. Trump was ultimately forced to turn over close to three-quarters of a million dollars of grant money for law enforcement he tried to withhold. Expect them to have learned from past experience and be more deliberate about using the levers of power to achieve their aims this time.

The bottom line is that all of the pieces of Project 2025 that we’ve discussed for the last year are in play. We’ve known that here, even though Project 2025 seemed to fall off the radar screen after Trump's ersatz denial. Now it’s clear that all of the horribles are on the table, everything from the end of the Department of Education to the discontinuation of the weather warnings NOAA provides. In July, Roberts said on a podcast, “We are in the process of the second American Revolution, which will remain bloodless if the left allows it to be.” If the left won’t “allow” the proponents of Project 2025 to have their way, they’re going to force it on us, and apparently, they’re willing to engage in bloodshed if Americans stand up for democracy.

We are headed into a holiday week, and folks are still weary and demoralized from the election. But it’s time. It’s time to reengage and decide what role we’re going to play. Project 2025 isn’t about the best interests of the American people. It’s about a powerful president who can carry out the policies that people like Vought and Roberts have spent years crafting—whether we like them or not. Let’s pay attention!

We’re in this together,

Joyce

 

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The Week Ahead

November 10, 2024

Joyce Vance Nov 11

This is a tough one to write.

My top-line thought for the week ahead: Don’t give up!

If you want to plan a protest, plan it. If you want to knit in public at a lecture, do it. Don’t let anyone else make the rules for you. You get to set your own vision for what it means to be persistently pro-democracy as we prepare to face what’s ahead.

For me, it means resisting the language of division that brought us here and working to maintain the big tent that helped us win the fight for four more years of democracy in 2020. People are down right now; none of us are at our best. So, give people a lot of space and understanding. But don’t be afraid to act on your own or enlist like-minded friends to come along with your plans. Don’t let anyone tell you that your way of expressing your love for country and Constitution isn’t the right way. There is a lot of that going around, as many people with good intentions are struggling.

If you’re looking for inspiration and have the concentration for a longer piece, read the words of Czech leader Václav Havel, who wrote The Power of the Powerless in 1978, ten years after the Soviet Union crushed Prague Spring. Havel explored the idea that individuals who might normally be seen as powerless can make common cause in dissidence against a repressive political structure. The Czechs did not have the centuries-long history of democracy like we do, nor did they have a Constitution in place that guaranteed rights like our does. Still, Havel pointed the way for them to resist a totalitarian system. Although the story of our coming struggle is likely to be very different from theirs, you may still take heart reading Havel, knowing that his people struggled free from a dictatorial regime and created a republic.

The outcome of this election has been incredibly hard to come to terms with. In my heart, I feared Donald Trump would win—I live in a state where many people support him and their numbers were strong—but I hoped and even dared to believe it wouldn’t happen. And of course, I was wrong.

We are in for tough times, and they will not be times to give up in. Lawyers are already preparing to do important work. They have the experience of 2016 to guide them. Project 2025 and Trump’s Agenda 47 vision are dark. But they are not self-executing; they will have to do the work to put them in place, and we need to be there every step of the way, pushing back. Never underestimate the value of the public voice.

But do take time to refresh your understanding of the policies this administration has rallied around in advance. I have not forgotten that in early July, Heritage Foundation President Kevin Roberts commented that the coming revolution could be “bloodless if the left allows it to be.”

• This interview with States United CEO Joanna Lydgate is an overview of Project 2025

• This piece touches on climate and science

• This piece talks about the impact of mass deportations

• This piece linked Trump to Project 2025 after he disclaimed knowledge of it

• This is an index of the columns I wrote about Project 2025 prior to last July

We have a long history and tradition of democracy in this country. We have local governments and organizations where we can run for office and use our power to make things better, even if Trump is trying to make them worse at the national level. We are still a constitutional democracy, and if we want to keep the Republic, we are going to have to fight to hold onto as many of our norms as we can.

But not all this week.

This week we are going to have to endure the winding down of the criminal cases against Donald Trump. That’s a gut punch for those of us who believed that accountability was possible and that Donald Trump wasn’t above the law.

Tuesday in Manhattan, Judge Juan Merchan is expected to rule on whether the Supreme Court’s presidential immunity decision impacts Trump’s conviction in the New York case. If the convictions survive, and they should, or at least some of them, expect a rocket of an appellate case going off, as Trump tries to avoid being sentenced later this month. He may succeed given the politics of the moment, but legally, there is no reason he can’t be sentenced, although, and I’m sorry to be the bearer of bad news, I expect that even if he receives a custodial sentence, he will not serve it because of the Supremacy Clause of the Constitution. It’s an entirely unsatisfactory conclusion to one of the worst-ever violations of American democratic principles.

I don’t expect normal times ahead. I believe Trump when he tells us who he is. I believe MAGA when they tell us who they are. This wasn’t just a campaign where the winner takes office and we all move on happily together, shoring up our disappointment. We have to be prepared for that reality, and not get sucked into a “business as usual” version of what Trump’s time in office will look like.

We haven’t begun to fight yet, but as we get over the shock of the election, we can begin to get ready. As President Biden says, you can’t love your country only when you win. I’d add to that, you can’t be willing to fight for democracy only when it’s easy.

We’re in this together,

Joyce