Danielle Crockett The Insurrection Act and Executive Power to Respond with Force to Natural Disasters

 

Danielle Crockett The Insurrection Act and Executive Power to Respond with Force to Natural Disasters ABSTRACT In the wake of Hurricane Katrina, Congress amended the Insurrection Act of 1807. The Act enables the President to deploy the military “to suppress, in any State, any insurrection, domestic violence, unlawful combination, or conspiracy.” The amended Act expands the language of the original Act to include natural disasters, epidemics, or other serious public health emergencies, terrorist attacks or incidents, or other conditions. Opponents of the amendment, most notably all fifty governors, criticize the amendment as a presidential power grab aimed at suppressing the power of the states and increasing the role of the military in domestic affairs. This paper argues that the amendment to the Insurrection Act does not affect the President’s existing powers to deploy the military domestically. Instead, this paper argues that the amendment merely clarifies the situations that justify the use of the military to respond to domestic disorder. An analysis of the historical use of the Act and the Act’s language indicates that justification for presidential action prior to the amendment focused on the extent, rather than the source of the domestic disorder. The changes made in October of 2006 provide explicit examples of situations that may lead to events of public disorder justifying the President’s invocation of the Act’s authority. In addition, political and historical limitations, along with limitations in the Act itself, will restrict presidential abuse of the power. Thus, the uproar over the recent changes to the Insurrection Act and the fears of martial law are unfounded. Danielle Crockett 2Introduction Hurricane Katrina raised serious questions about the power of the President to use federal troops to respond to natural disasters. During the hurricane, security concerns, both real and perceived, delayed the disaster response and detracted from the primary focus of saving lives. For example, on August 31, 2005, the New Orleans police force was called off its search and rescue missions to respond to looting.1 As the White House Report on the Federal Response to Hurricane Katrina stated, “[s]ecurity concerns suspended search and rescue missions, delayed the restoration of communications infrastructure, and impeded medical support missions.”2Ultimately, the number of troops who responded to Hurricane Katrina constituted the largest domestic deployment since the Civil War.3 By September 15, 2005, nearly 15,000 active duty personnel had been deployed to the disaster area.4 Despite the widespread reports of looting and general lawlessness, federal law limited the role of the active duty troops to rescue and evacuation activities; emergency treatment of casualties; emergency restoration of power; debris removal; food distribution; roadway control; and emergency communications.5During the crucial hours that followed the hurricane’s landfall, Governor Blanco asked President Bush to “send everything you have got.”6 However, the Governor refused to relinquish control of the state National Guard troops to the President.7 Moreover, Governor Blanco did not want federal troops entering the area to assist with law enforcement.8 In response, the Bush 1 THE FEDERAL RESPONSETO HURRICANE KATRINA: LESSONS LEARNED, at 40 (Feb. 2006), available athttp://www.whitehouse.gov/reports/katrina-lessons-learned.pdf. 2 Id. 3 S. COMM. ON HOMELAND SEC., HURRICANE KATRINA: A NATION STILL UNPREPARED, at 13 (May 2006), available at http://hsgac.senate.gov/_files/Katrina/FullReport.pdf. 4 THE FEDERAL RESPONSE TO HURRICANE KATRINA, supra note 1, at 43. 5 Id. 6 S. COMM. ON HOMELAND SEC., HURRICANE KATRINA,supra note 3, at 491. 7 See STEVE BOWMAN et al., HURRICANE KATRINA: DOD DISASTER RESPONSE, CRS Rep. No. RL 33095, at 11 (Sept. 19, 2005), available at http://www.fas.org/sgp/crs/natsec/RL33095.pdf. 8 Id. Danielle Crockett 3Administration scrambled to discern whether it had the authority to send federal troops to carry out law enforcement in Louisiana despite the Governor’s opposition.9 After much debate, the Department of Justice’s Office of Legal Counsel concluded that it did have authority to send troops, but, for political reasons, the Administration opted not to take control away from the Governor.10An old and much-debated law, the Posse Comitatus Act, was responsible for the Administration’s confusion and the limited role that the military played during Hurricane Katrina. The Act is the most notable limitation on both the President and Congress’ power to deploy the military to enforce civil law, and is a reflection of the long-standing Anglo-American distaste for military involvement in civilian affairs.11 The Act prohibits the use of federal troops to “execute the laws” unless there is an express constitutional or statutory exception.12 One longstanding exception, and the subject of this paper, is the Insurrection Act of 1807.13A little over a year after Hurricane Katrina, Congress amended the Insurrection Act and changed the Act’s name to “Enforcement of the Laws to Restore Public Order.”14 The amendment met with widespread criticism, from commentators and state governors alike.15Critics argued that the amendment enables the President to declare martial law too easily and that the amendment gives a power traditionally reserved for the states to the President.16 This paper questions the validity of this criticism and argues that the amendment merely clarifies a power 9 Eric Lipton, Eric Schmitt and Thom Shanker, Storm and Crisis: Military Reponse; Political Issues Snarled Plans for Troop Aid, N.Y. TIMES, Sept. 9, 2005, at A1. 10 Id. 11 See CHARLES DOYLE, THE POSSE COMITATUS ACTAND RELATED MATTERS: THE USEOF THE MILITARY TO EXECUTE CIVILIAN LAW, CRS Rep., Order Code 95-964, Updated June 1, 2000. 12 See 18 U.S.C. § 1035. 13 10 U.S.C. §§ 331-335. 14 See John Warner Defense Authorization Act for Fiscal Year 2007, H.R. 5122, 109th Cong. (2006) (enacted). 15 See e.g. George Cahlink, Governors ‘Disappointed” with Expanding Federal Role of National Guard, CQ TODAY, Oct. 6, 2006. 16 Id. Danielle Crockett 5by the Act. The changes made in October of 2006 provide explicit examples of situations that may lead to events of public disorder justifying the President’s invocation of the Act’s authority. In addition, political and historical limitations, along with limitations in the Act itself, will restrict presidential abuse of the power. Thus, the uproar over the recent changes to the Insurrection Act and the fears of martial law are unfounded. I. Introduction to the Insurrection Act A. The History and Language of the Insurrection Act Congressional recognition of the power of the President to call forth the armed forces to suppress an insurrection first appeared in the Militia Act of 1792.17 The Militia Act permitted the President to call forth the militia in response to “an insurrection in any state, against the government thereof” upon the application of the legislature of the state, or of the executive (when the legislature cannot be convened).18 Section 2 permitted the President to call forth the militia “whenever the laws of the United States [are] opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings.”19 In addition, if the militia of the state was unable or refused to comply, Section 3 of the Militia Act required the President to issue a proclamation commanding the insurgents to disperse and retire peaceably within a limited time before using the militia to suppress the insurrection.20 Although the terms of the Militia Act limited the duration of the Act to two years following the end of the next session of Congress, Congress later extended the application of the Act.2117 Ch. 28, 2nd Cong. (May 2, 1792). 18 Id. at § 1. 19 Id. at § 2. 20 Id. § 3. 21 Id. § 10. Danielle Crockett 6Although the Insurrection Act is known as the “Insurrection Act of 1807,” the Seventh Congress enacted a similar, although less specific, law in 1803. The 1803 law permitted the President, “on an invasion, or insurrection, or probable prospect thereof, to call forth such a number of militia . . . as he may deem proper.”22The 1807 version of the Insurrection Act expanded the President’s power to include the power to call forth the army and navy, rather than just the state militias.23 That version states that where it is lawful for the President to call forth the militia to suppress an insurrection or ensure that the laws of a State or of the United States are executed, the President may also employ the “land or naval forces of the United States” for the same purpose.24In 1808, President James Madison invoked the Insurrection Act to order the dispersal of and a military response to “persons combined, or combining and confederating together on Lake Champlain . . . for the purpose of forming insurrections against the authority of the laws of the United States, for opposing the same and obstructing the execution.”25 The President further concluded, “such combinations are too powerful to be suppressed in the ordinary course of judicial proceedings, or by the powers vested in the marshals by the laws of the United States.”26The language found in the contemporary Insurrection Act emerged in the Civil Rights Act of 1871.27 In April of 1871, the Governor of South Carolina made a request to the President for assistance in maintaining order in South Carolina in response to actions taken by the Klu Klux Klan.28 In response to the behavior of the Klu Klux Klan and the widespread lawlessness 22 Ch. 20, § 24, 7th Cong. (1803). 23 Ch. 39, 9th Cong. (March 3, 1807). 24 Id. 25 Proclamation By the President of the United States, American State Papers, 10th Cong., No. 258, April 19, 1808. 26 Id. 27 Ch. 22, 17 Stat. 13 (1871) (codified as amended at 18 U.S.C. § 241, 42 U.S.C. §§ 1983, 1985(3), 1988). 28 HARPER’S WEEKLY, at 306 (Editorial), April 8, 1871, available athttp://education.harpweek.com/KKKHearings/Article24.htm. Danielle Crockett 9Act fail to specify which section of the Act upon which they rely. For example, presidents used the Insurrection Act to deploy troops to the South during the 1950s and 1960s to enforce desegregation and maintain order. In 1957, President Dwight D. Eisenhower relied on the Insurrection Act to remove obstructions of justice in respect to enrollment and attendance at public schools in the Little Rock, Arkansas School District.39 Likewise, President Kennedy invoked the Insurrection Act in 1962 and 1963 to send federal troops to Mississippi and Alabama, respectively, to enforce constitutionally protected civil rights threatened by reactions to desegregation.40The language of the executive orders indicates that the presidents relied on both section 332 and section 333. For example, the executive orders state, “for the removal of obstructions to justice,” “to enforce all orders of the United States District Court,” and “to suppress unlawful assemblies, conspiracies, and domestic violence.”41 Reference to the orders of the District Court indicate reliance on section 332, which requires the impracticability of enforcing state and federal laws “by the ordinary course of judicial proceedings,”42 whereas reference to conspiracies and domestic violence indicate reliance on section 333. President George Bush Sr. used the Insurrection Act to authorize the armed services to restore law and order in response to the Los Angeles riots.43 On May 1, 1992, at the request of the Governor of California, President Bush issued an executive order authorizing the Secretary of Defense to use the Armed forces to suppress “domestic violence and disorder . . . in Los Angeles 39 Exec. Order No. 10,730 (Sept. 24, 1957), reprinted at 22 Fed. Reg. 7628. 40 Exec. Order No. 11,053 (Sept. 30, 1962), reprinted at 27 Fed. Reg. 9681; Exec. Order No. 11,111 (June 11, 1963), reprinted at 28 Fed. Reg. 5707; Exec. Order No. 11,118 (Sept. 10, 1963), reprinted at 28 Fed. Reg. 9863. 41 See Exec. Order No. 11,053, supra note 40; Exec. Order No. 11,111, supra note 40; Exec. Order 11,118, supranote 40; see also Alabama v. United States, 373 U.S. 545 (1963) (indicating that President Kennedy had authority to send troops to the South under section 333 of the Insurrection Act). 42 10 U.S.C. § 332. 43 See Exec. Order No. 12,804 (May 1, 1992), reprinted at 57 Fed. Regulation. 19359; see also Pres. Proc. No. 6,427 (May 1, 1992), reprinted at 57 Fed. Reg. 19381. Danielle Crockett 10. . . endangering life and property and obstructing execution of the laws . . . and to restore law and order.”44 While the executive order does not identify a specific provision of the Act, the fact that California’s governor requested the assistance, coupled with the language used in the executive order and proclamation, indicate that the President believed his authority derived from section 331, the only section of the Act specifically calling for request from the State.45It is important to note that in Los Angeles, despite the President’s reliance on the Insurrection Act, the military was not in fact used to enforce the law.46 Instead, the Joint Task Force commander prohibited the troops from enforcing the law and required each request for assistance to be subject to a test to determine whether the requested activity constituted law enforcement.47 If the activity did constitute law enforcement, the commander prohibited the military from engaging in the activity.48 The commander’s refusal to allow the troops to act in a civil law enforcement role stemmed from his confusion over the limitations of the Posse Comitatus Act, which I discuss in detail below in Part III.49Finally, President George Bush Sr. also invoked the Insurrection Act to send troops to the Virgin Islands to stop looting that followed Hurricane Hugo in 1989.50 In the executive proclamation, President Bush referred to “domestic violence and disorder . . . endangering life and property and obstructing execution of the laws,” which local law enforcement was unable to suppress to restore law and order. Again, while the President does not explicitly state which provision of the Insurrection Act upon which he relied, his reference to domestic violence and 44 Pres. Proc. No. 6,427 (May 1, 1992) reprinted at 57 Fed. Reg. 19359. 45 Linda J. Dermaine and Brian Rosen, ProcessDangers of Military Involvement in Civil Law Enforcement: Rectifying the Posse Comitatus Act, 9 N.Y.U. J. LEGIS & PUB. POL’Y 167, n2 (2006); 10 U.S.C. § 331. 46 Dermaine and Rosen, supra note 45, at 171. 47 Id. at 172 (citing Christopher M. Schnaubelt, Lessons in Command and Control from the Los Angeles Riots, 27 PARAMETERS 88, 101 (1997)). 48 Id. 49 Id. 50 See Exec. Order No. 12,690 (Sept. 20, 1989), reprinted at 54 Fed. Reg. 39153. Danielle Crockett 11the absence of a judicial order commanding the looters to disperse indicate that he most likely relied on section 333. B. The Insurrection Act and Hurricane Katrina As demonstrated above, Presidents have used the Insurrection at various times throughout history to put down lawlessness, insurrection, and rebellion. Since Hurricane Katrina, various sections of the Act have been pointed to as having provided the President the authority to deploy the troops to enforce the law during the hurricane.51 Governor Blanco requested President Bush to send “everything you’ve got,” and specifically requested federal troops on several occasions.52However, she did not want a federal takeover of the disaster relief effort and instead wanted the State National Guard troops to retain primary responsibility, with federal troops focusing on disaster relief tasks other than law enforcement.53Because Governor Blanco would not request federal assistance, Bush Administration officials sought other ways of circumventing the limitations of the Posse Comitatus Act (“PCA”).54 For example, officials proposed that a Title 10 officer be sworn into the Louisiana National Guard.55 As a commander of both Title 10 troops and the State National Guard, the commander would have been able to control both groups. Governor Blanco rejected this proposal.56Knowing that a request from the Governor was unlikely, Bush Administration, Department of Defense and the Department of Justice officials began investigating other possible 51 See Robert Burns, U.S. Looks at Role for Military: Some Want to Change Law to Permit Using Soldiers in Disasters, CHI. SUN. TIMES, Sept. 18 2005; John Yoo, Trigger Power, L.A. TIMES, Oct. 2, 2005. 52 S. COMM. ON HOMELAND SEC., HURRICANE KATRINA,supra note 3, at 491. 53 See Bowman, supra note 7, at 11. 54 Lipton et al., supra note 8. 55 See Bownam, supra note 7, at 11. 56 Id.