restore old rules for insurrection act

Press Release

Davis Introduces Legislation to Return National Guard Authorities to Governors
Bill would restore old rules for invoking Insurrection Act
February 7, 2007

Contact: Brian McNicoll (202)225-5074

WASHINGTON , D.C. – Rep. Tom Davis (R-Va.), ranking member on the House Committee on Oversight and Government Reform, introduced legislation that would repeal a new law that makes it easier to federalize the National Guard for domestic law enforcement purposes during emergencies, even over governors’ objections.

Davis is the lead Republican co-sponsor, and Rep. Timothy Walz, D-Minn., is the lead Democratic sponsor of the bill, which also was introduced in the Senate by Sen. Patrick Leahy, D-Vt., and Sen. Kit Bond, R-Mo. The legislation would address concerns that have arisen among the nation’s governors and the National Guard community since the legislation was approved late last year over what lawmakers say is a dangerous re-centering of power in the federal branch.

“This usurpation of power by the executive branch is unhealthy, unwise and unworkable,” said Davis. “Governors know best when and where and how to deploy the Guard within their borders, and only in the most extreme cases should this power be abridged.”

At issue is the Insurrection Act, which governs when the president can declare martial law. When the Act is invoked, the military, including the National Guard, can carry out law-enforcement functions without the consent of a governor. The Posse Comitatus law, which prevents the military from engaging in domestic police activities, does not apply when the Insurrection Act is invoked.

Before late last year, the president could invoke the Insurrection Act during violent situations that deprived citizens of their rights. The language tilted against invoking the act except for clear cases of insurrection and promoted the notion that presidents consult with governors before they wrest control of the Guard. Under these rules, the Insurrection Act was invoked just three times in the last 50 years.

Under the new language, which was part of the FY 2007 National Defense Authorization Act the president can invoke the act and declare martial law in cases where public order breaks down as a result of a natural disaster, epidemic, terrorist attack or “other conditions.” In short, the default position would go from governors deciding when to use the Guard troops under their command to the president – who is less familiar with the needs of the state or the capabilities of its Guard units – making these decisions.

No governor supported the change, and all governors support reverting to the previous language, which this bill would restore. “By granting the president specific authority to usurp the Guard during a natural disaster or emergency without the consent of a governor, [the new law] could result in confusion and an inability to respond to residents’ needs because it calls into question whether the governor or the president has primary responsibility during a domestic emergency,” the governors wrote to Rep. Davis and Rep. Gene Taylor, D-Miss., who also focuses on Guard issues.

The potential for abuse is real, Davis said. He noted that, during the aftermath of Hurricane Katrina, the Department of Defense tried to foist its active duty commander on both Louisiana and Mississippi and tried to force another commander on New York after 9/11. The U.S. Northern Command also had no procedures for interaction with state and local officials, which would’ve been critical to response to Katrina and 9/11. Davis highlighted these findings as chair of the House Select Committee on Katrina.

“It’s been the National Guard’s job since the birth of the Republic to be the governors’ homeland response force.” Davis said. “The system we had in place has worked well for this entire time. There was no reason to change it, and now, there is no reason not to change it back.”