During his speech at Jackson Square detailing recovery initiatives proposed to recover those areas affected by Hurricane Katrina, President Bush also made clear his desire to initiate changes to the Insurrection Act:
To understand the very limited role that federal troops can play in domestic law enforcement you first need to look at The Posse Comitatus Act of 1878 which was tacked on to an Army appropriations bill mainly in response to abuses and corruption in military districts in the South after the US Civil War. The Act states:
Posse Comitatus does not prohibit federal troops to be used in domestic law enforcement, but does limit their involvement to those instances "expressly authorized by the Constitution or Act of Congress." A short essay of the legal issues surrounding this act can be found here.
The Insurrection Act pre-dates The Posse Comitatus Act, with its history dating back to 1796 and the Whiskey Rebellion which is also the first and last time that a president of the United States commanded an army in the field.
The Insurrection Act states:
What happened in New Orleans was a clear case of looting. It would be a legal fiction to claim that the residents of New Orleans were in insurrection against the state of Louisiana. In my opinion, this rules out a § 331 declaration.
A thin case could be made for looting of FDIC-insured ATM machines - a violation of federal law - would satisfy the § 332 requirement, though a § 332 declaration would not enable federal troops to do things like enforcing a curfew or assisting local and state law enforcement. As a practical matter, federal law enforcement troops would need the cooperation of Gov. Blanco, LANG, LSP and NOPD.
The most compelling case for an Insurrection Act declaration would be under § 333, where the state is unable or - as in this case - refuses to uphold state laws. The legal case would have to be made that Constitutional rights were being violated as a result. This section would make a good debate topic in itself. It would put the President in the position of having to declare the Democratic governor of the State of Louisiana in insurrection against the United States. That may or may not be a stretch according to your view of the situation. At any rate, the POTUS could take no action until after the problem already exists.
Personally, I think this would have been a correct action, though I don't want any lefty types carping on this issue. Basically, if you don't think the USA PATRIOT Act was the best thing to happen in this country since the House Committee on Un-American Activities, then I don't care to hear your §333 argument.
Title 10; Section 382 of the United States Code also gives DOJ and DOD powers in dealing with a WMD attack against the United States that supersedes civilian authority.
There is no legitimate reason to exclude federal troops from law enforcement in the aftermath of a catastrophic natural disaster - even over the objection of elected state officials such as was the case in Louisiana. Since natural disasters tend to have scientific metrics, it should not be that hard to be specific in legislation. Some of the criterion could include:
In order to make an emergency declaration under this act, the president must certify that the disaster must directly effect over X amount of persons and that the state is unable or fails to maintain the order necessary to protect life, property, the safety of emergency responders, or speedy humanitarian relief. This would allow the fed to trump state and local officials.
There should also exist a mechanism for the governor of a state to invite federal intervention though invitation would not be required.
The emergency declaration should last for 14 days at which time the Governor of the state can petition to reclaim control or to extend the declaration, at which time it can be extended another 14 days upon consent of Congress.
The declaration should allow troops to enforce exclusion zones, curfews and existing state and federal law and would allow defendants to be removed from the jurisdiction for processing and detention.
Thoughts?
To understand the very limited role that federal troops can play in domestic law enforcement you first need to look at The Posse Comitatus Act of 1878 which was tacked on to an Army appropriations bill mainly in response to abuses and corruption in military districts in the South after the US Civil War. The Act states:
Posse Comitatus does not prohibit federal troops to be used in domestic law enforcement, but does limit their involvement to those instances "expressly authorized by the Constitution or Act of Congress." A short essay of the legal issues surrounding this act can be found here.
The Insurrection Act pre-dates The Posse Comitatus Act, with its history dating back to 1796 and the Whiskey Rebellion which is also the first and last time that a president of the United States commanded an army in the field.
The Insurrection Act states:
What happened in New Orleans was a clear case of looting. It would be a legal fiction to claim that the residents of New Orleans were in insurrection against the state of Louisiana. In my opinion, this rules out a § 331 declaration.
A thin case could be made for looting of FDIC-insured ATM machines - a violation of federal law - would satisfy the § 332 requirement, though a § 332 declaration would not enable federal troops to do things like enforcing a curfew or assisting local and state law enforcement. As a practical matter, federal law enforcement troops would need the cooperation of Gov. Blanco, LANG, LSP and NOPD.
The most compelling case for an Insurrection Act declaration would be under § 333, where the state is unable or - as in this case - refuses to uphold state laws. The legal case would have to be made that Constitutional rights were being violated as a result. This section would make a good debate topic in itself. It would put the President in the position of having to declare the Democratic governor of the State of Louisiana in insurrection against the United States. That may or may not be a stretch according to your view of the situation. At any rate, the POTUS could take no action until after the problem already exists.
Personally, I think this would have been a correct action, though I don't want any lefty types carping on this issue. Basically, if you don't think the USA PATRIOT Act was the best thing to happen in this country since the House Committee on Un-American Activities, then I don't care to hear your §333 argument.
Title 10; Section 382 of the United States Code also gives DOJ and DOD powers in dealing with a WMD attack against the United States that supersedes civilian authority.
There is no legitimate reason to exclude federal troops from law enforcement in the aftermath of a catastrophic natural disaster - even over the objection of elected state officials such as was the case in Louisiana. Since natural disasters tend to have scientific metrics, it should not be that hard to be specific in legislation. Some of the criterion could include:
- Category 4 of 5 hurricanes measured at landfall.
- Magnitude 7.5 or larger earthquakes.
- Tsunami estimated at a certain height.
- Certain metrics for volcanism.
In order to make an emergency declaration under this act, the president must certify that the disaster must directly effect over X amount of persons and that the state is unable or fails to maintain the order necessary to protect life, property, the safety of emergency responders, or speedy humanitarian relief. This would allow the fed to trump state and local officials.
There should also exist a mechanism for the governor of a state to invite federal intervention though invitation would not be required.
The emergency declaration should last for 14 days at which time the Governor of the state can petition to reclaim control or to extend the declaration, at which time it can be extended another 14 days upon consent of Congress.
The declaration should allow troops to enforce exclusion zones, curfews and existing state and federal law and would allow defendants to be removed from the jurisdiction for processing and detention.
Thoughts?