From Governing’s
February 2007 issue

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Senator Warner’s Posse

A new federal law gives the military a domestic function it hasn’t had before.

Last year, with almost no one watching, Congress dramatically changed the historic balance of power between the federal and state governments.

Tucked inside the annual defense authorization act was a provision written by U.S. Senator John W. Warner of Virginia. Under it, presidents have the authority to call up a state’s National Guard in case of “natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident.”

Why is this such a big deal? Because a state’s National Guard is normally under the control of the governor, and long-standing federal “posse comitatus” statutes limit the military’s role in law enforcement. In a stroke, last year’s bill moved the military to the core of the nation’s first-response system and allowed the president in a crisis to gain control of the troops from the 50 state governors.

Warner pushed for the change following the chaos of Hurricane Katrina, which left New Orleans without a functioning government for days. Mayor Ray Nagin was marooned in a hotel for 48 hours without a working telephone. Governor Kathleen Babineaux Blanco in Baton Rouge couldn’t find out what was happening in New Orleans, 80 miles away, let alone persuade the feds to take action. FEMA was immobilized, and the vast collection of federal assets, from meals ready-to-eat to helicopters, remained dots unconnected. It was as close to a total breakdown of civil order as the nation had seen in generations.

Coast Guard Admiral Thad Allen, whom President Bush appointed to take over management of the federal effort from FEMA’s Michael Brown, called Katrina “the equivalent of a weapon of mass effect without criminality” — a terrorist attack without the terrorists. The message: Mother Nature or terrorists could inflict such a blow again, and the nation needs to be ready.

But the Warner plan isn’t the sort of readiness the governors had in mind. In a letter sent to Congress last August, they all joined to complain that empowering the president to take control of a state’s Guard without the consent of the governor would create “an unprecedented shift in authority from governors as Commanders and Chief of the Guard to the federal government.” They said the current process, in which the governors deploy the Guard as needed, “works well and should not be changed.”

The question of who can deploy troops in the states goes back to the beginning of the nation. In the Federalist Papers, Alexander Hamilton reassured his readers that the new Constitution had no provision “for calling out the posse comitatus” (or a local sheriff’s power to arm citizens for law enforcement). The Stafford Act, which authorizes the federal government to respond to disasters, requires the governor to ask for help first.

The feds do have a legal weapon in the Insurrection Act of 1807, which gives the president power to deploy federal troops if necessary to execute the law. But the extent of the power is murky at best. That murkiness unquestionably made the government’s response to Katrina even worse, as lawyers tussled over who needed to file which forms before federal agencies could respond.

Katrina framed a basic question: Who is in charge when a big disaster disrupts the continuity of state and local governments? The hurricane also revealed that the traditional approach — what U.S. Senator Patrick Leahy of Vermont refers to as “the constructive friction” in ambiguous law and practice — could have punishing consequences.

All of our systems — communication, transportation, food, and health — are ever more interconnected, so that a major disruption anywhere can quickly have big impacts everywhere. We simply can’t afford a repeat of Katrina’s chaos, in which Americans died as the levels of American government sorted out the legal issues.

State officials might not like Senator Warner’s solution to the dilemma of balancing the tradition of state autonomy with the urgency of effective disaster response. But Katrina demonstrated just how harshly the tradition could punish Americans in the middle of large, nasty and increasingly inescapable events, natural and manmade.

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