Rebirth of Constitutional Federalism?Quis custodiet Ipsos Custodes?
The question is as old as the Republic: When can – and when is it appropriate for – the President of the United States to federalize the National Guard in response to a domestic disaster?
Fifteen months ago, Senator Patrick Leahy (VT) raised this issue as the Senate considered the John Warner Defense Authorization Act for Fiscal Year (FY) 2007 – what eventually became Public Law PL 109-364. This law conferred on the president the exclusive power to federalize the National Guard units of states hit by natural disasters.
The spurs for this action were clear from its inception: finding a scapegoat for the added disaster caused by the uncoordinated federal response to the disaster that was Hurricane Katrina; and portraying the White House’s reach for even more power as the best way to “rectify” the inefficiencies inherent in the Constitution’s division of responsibilities and prerogatives through its system of checks and balances.
For a number of reasons – including past modifications to the 1878 Posse Comitatus Act, changes to the Insurrection Act of 1807, and provisions of the USAPATRIOT Act – PL 109-364 potentially stripped state governors of any say as to the use of their National Guard units in cases of domestic disaster, natural or human-induced.
The experiences of the Revolution through which the Founding Fathers had so recently passed had to be foremost in their consciousnesses as they considered provisions of Articles I and II of the Constitution pertaining to the militias and their use. Their ongoing concern that the power of the federal executive be adequate but also circumscribed contributed to passage of the Second and Tenth Amendments (right to bear arms and reserving unenumerated powers to the states and the people, respectively). So in 2006, when Congress gave the president the power to call up the National Guard for federal service without obtaining the concurrence of the governors of affected states, it in effect attacking the foundation of federalism that the Founders had taken great pains to enshrine in the Constitution,
(See my November 2006 essay titled “Usurpation of Power” at http://www.fcnl.org/issues/item.php?item_id=2175&issue_id=139
for an in-depth analysis of Constitutional provisions, the Insurrection Act of 1807 and related statutes, and PL 109-364 and its implications for state vs. federal power and for individual rights, particularly habeas corpus.)
Before addressing what is happening in the 110th Congress, it is worth quickly recapping how the 109th Congress gave away the store – again – to the executive branch.
The Senate version of the 2006 Defense Authorization Act (H.R.5122) went to conference with a section intended to strengthen the independence of the National Guard by raising its bureaucratic profile, requiring the Pentagon to provide more and better equipment, and emphasizing the Guard’s role in responding to domestic disasters. When the Senate-House conference ended, the legislation not only had been stripped entirely of these proposals, in their place, according to Senator Leahy, were revisions “making it easier to usurp the Governors’ control and making it more likely that the President will take control of the Guard and the active military operating in the states.” If a president invokes the Insurrection Act with its tie to “rebellion” under which habeas corpus can be suspended, he can override state objections and authority and use federal forces or federalized forces (National Guard) for purposes of “enforcing the laws of the United States.”
Senator Leahy saw the changes as “payback” by the administration for the refusal of the Louisiana governor to cede control of post-Katrina recovery efforts to Washington. That may be true, but given the penchant of the Bush administration to pull political power into the Oval Office, Katrina may simply have been the disaster that was available. Indeed, the pre-Katrina title for Section 1076 of PL 109-364 suggests that the then Republican-controlled Congress was intent on expanding presidential power – “Use of the Armed Forces in Major Public Emergencies.” As the law stands now, the Insurrection Act permits the president to use “the armed forces, including the National Guard in Federal service, to restore public order” in circumstances that now include “terrorist attack or incident, or other condition in any State or possession of the United States, [should] the President determine” that state authorities cannot “maintain public order” because of “domestic violence.”
The Fiscal Year 2008 Defense Authorization legislation (H.R. 1585) has finally emerged from conference committee and should be considered by the full House and full Senate this week or next. Two “cosmetic” changes affecting the Guard and two substantive changes survived the conference.
Under the “cosmetic” rubric, this year’s conference agreed (Section 533) to raise the profile of the National Guard Bureau in the Pentagon by designating the position of Chief of the National Guard Bureau a four star billet (currently the Chief is a three star general.) Presumably, the Directors of the Army National Guard and Air National Guard will move from two stars to three. (The Navy and Marine Corps do not have a “National Guard.”) Another “profile” change (Section 1802) designates the National Guard as a “joint activity,” which is in keeping with its dual-service make-up.
Substantively, the legislation (Section 1807) requires the Chief of the National Guard Bureau to certify that equipment designated by Congress for the Guard actually arrives in the unit. This is particularly important today given the demands for personnel and equipment for the Iraq and Afghanistan wars and the extensive wear on equipment that the Guard units need when called out by governors when domestic disasters occur – transport helicopters, cargo/personnel fixed wing aircraft, trucks, HMVEES, radios. In past years, administrations of both parties often did not request funds for National Guard equipment needs knowing full well that when the Defense Appropriations bill emerged from conference, the conferees would have added money for at least some of the more pressing equipment needs.
Most importantly, this year’s Defense Authorization conference committee action reverses (Section 1022) the provision in PL 109-364 (FY2007 Defense Authorization Act) allowing the president to federalize the National Guard without agreement from the governors of the affected states in emergencies or domestic disasters.
Bush insists that his first responsibility is to safeguard the American public. But as we have learned -- I hope -- over the last seven years, those of us who are “safeguarded” had better be on our guard to ensure our guardians do not become our masters. And that, in case you are wondering, is the translation of the above Latin maxim by Juvenal.