A
little-noticed change in federal law packs an important change in who
is in charge the next time a state is devastated by a disaster such as
Hurricane Katrina.
To the dismay of the nation’s governors, the
White House now will be empowered to go over a governor’s head and call
up National Guard troops to aid a state in time of natural disasters or
other public emergencies. Up to now, governors were the sole commanders
in chief of citizen soldiers in local Guard units during emergencies
within the state.
A conflict over who should control Guard
units arose in the days after Hurricane Katrina in 2005. President Bush
sought to federalize control of Guardsmen in Louisiana in the chaos
after the hurricane, but Gov. Kathleen Blanco (D) refused to relinquish
command.
Over objections from all 50 governors, Congress in
October tweaked the 200-year-old Insurrection Act to empower the hand
of the president in future stateside emergencies. In a letter
to Congress, the governors called the change "a dramatic expansion of
federal authority during natural disasters that could cause confusion
in the command-and-control of the National Guard and interfere with
states' ability to respond to natural disasters within their borders."
The
change adds to tensions between governors and the White House after
more than four years of heavy federal deployment of state-based Guard
forces to fight in Iraq and Afghanistan. Since the 2001 terrorist
attacks, four out of five guardsmen have been sent overseas in the
largest deployment of the National Guard since World War II. Shortage
of the Guard’s military equipment – such as helicopters to drop hay to
snow-stranded cattle in Colorado – also is a nagging issue as much of
units’ heavy equipment is left overseas and unavailable in case of a
natural disaster at home.
A bipartisan majority of
both chambers of Congress adopted the change as part of the 439-page,
$538 billion 2007 Defense Authorization Bill signed into law last
October.
The nation's governors through the National Governors
Association (NGA) successfully lobbied to defeat a broader proposal to
give the president power to federalize Guard troops without invoking
the Insurrection Act. But the passage that became law also
"disappointed" governors because it expands federal power and could
cause confusion between state and federal authorities trying to respond
to an emergency situation, said David Quam, an NGA homeland security
advisor.
"Governors need to be focused on assisting their
citizens during an emergency instead of looking over their shoulders to
see if the federal government is going to step in," Quam said.
Under
the U.S. Constitution, each state's National Guard unit is controlled
by the governor in time of peace but can be called up for federal duty
by the president. The National Guard employs 444,000 part-time soldiers
between its two branches: the Army and Air National Guards.
The
Posse Comitatus Act of 1878 forbids U.S. troops from being deployed on
American soil for law enforcement. The one exception is provided by the
Insurrection Act of 1807, which lets the president use the military
only for the purpose of putting down rebellions or enforcing
constitutional rights if state authorities fail to do so. Under that
law, the president can declare an insurrection and call in the armed
forces. The act has been invoked only a handful of times in the past 50
years, including in 1957 to desegregate schools and in 1992 during
riots in south central Los Angeles after the acquittal of police
accused of beating Rodney King.
Congress changed the
Insurrection Act to list "natural disaster, epidemic, or other serious
public health emergency, terrorist attack or incident" as conditions
under which the president can deploy U.S. armed forces and federalize
state Guard troops if he determines that "authorities of the state or
possession are incapable of maintaining public order."
Backers
of the new rules, including U.S. Sens. John W. Warner (R-Va.) and
Edward Kennedy (D-Mass.) said the changes were needed to clarify the
role of the armed forces in responding to serious domestic emergencies.
Mark
Smith, spokesperson for the Louisiana Governor's Office of Homeland
Security and Emergency Preparedness, said local and state emergency
responders know what their communities need during a crisis better than
officials in Washington.
"The
president should not be able to step in and take control of the
National Guard without a governor's consent. The Guard belongs to the
states, has always belonged to the states and should remain a function
of the states," Smith said.
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