I'm not really all that much of a states' rights guy. I fall more on the "strong federal government" side of the spectrum. So when someone like me starts screaming about a massive sneak attack on federalism, you might want to pay attention.

If I told you that Congress was considering passing a law that gives the President -- this President -- the power, in the event of any "disaster, accident, or catastrophe" that he deems to require it, to:

- involuntarily take National Guard troops from State A and
- require them to work in State B for up to a year,
- in law enforcement rather than just traditional areas like disaster relief,
- over the objection of both state's governors

would you believe it? Probably not. And you'd be right. Congress is not considering such a bill.

IT ALREADY PASSED SUCH A BILL THREE WEEKS AGO!

Follow me over the jump. Read it, weep, and prepare to pass on the word - and to act.

Major Danby's diary :: ::
It's important that we understand what the Bush Administration has done here, because they've done it in a sneaky, underhanded, and almost invisible way. We need to start with some basic concepts. I am indebted to two diaries by Cedwyn (here and here) and a previous diary by Rusty1776, as well as sources such as Sen. Patrick Leahy, whom I quote in my previous diary on this subject, and to a great blog post by Sarah R. Carter on her father's Senate campaign website.

The National Guard:

First, and most basically, because it confuses some people: each state (and territory, and D.C., but we'll ignore those for this discussion) has its own "National Guard." As with the concept of "federalism," which refers to the power that the states retain despite the existence of a federal government, this name can be misleading. The National Guard belongs to the states, not to the Federal Government, except with the governor's agreement or under certain specified conditions. The National Guard is the Governor's muscle.

The Posse Comitatus Act:

"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both."

What that means is that the federal government can't use federal troops -- or federalized state troops (which is what this outrage is about) -- as a national law enforcement posse to enforce the law, except under certain exceptions. You probably already know the term for putting an area under military law enforcement control: it's called "martial law." Now, a Governor can declare martial law in an emergency under terms that vary by state. You saw an example of that when Gov. Blanco declared martial law in parts of Louisiana during Hurricane Katrina. But a President can only federalize troops for such use under exceptions specified by law. Where do you find those?

The Insurrection Act:

You find them in the Insurrection Act. This was invoked, for example, in Arkansas in the 1950s when President Eisenhower controversially nationalized the Arkansas National Guard over the objections of that state's Governor and directed them to enforce the law ending mandatory school segregation. He argued that the state's refusal to follow the federal law constituted an insurrection against the federal government.

Well, OK, you might say, I can see giving the power to nationalize a state's National Guard in that situation, even if the governor objects. They were defying federal law. That's not such a bad exception.

Right. But guess what just got amended? This small exception is now a gaping hole.

Here's what happened.

You can see my previous diary for Sen. Patrick Leahy's September 19 statement on what the legislation then before Congress would do. The Fiscal Year 2007 Defense Authorization Bill was envisioned as a bill that would strengthen the National Guard. With a sick sense of irony, the Bush Administration gutted this provision and replaced it with a "body snatcher" provision that represented "a sizable step toward weakening states' authority over their Guard units." The provision "mak[es] it easier for the President to declare martial law, stripping state governors of part of their authority over state National Guard units in domestic emergencies."

Here's an explanation for what this law does; the citation for which I'm omitting:

When the President invokes section 333 of chapter 15, he may involuntarily call to active duty members of the reserve components (not more than 200,000 Select Reserve and Individual Ready Reserve, of whom not more than 30,000 may be Individual Ready Reserve) for up to 365 days to conduct law enforcement activities in a disaster, accident, or catastrophe area and, if such incident involves a terrorist or WMD threat or attack, other response activities. In addition, the President may involuntarily call to active duty members of the reserve components to provide supplies, services, and equipment to persons affected by the disaster, accident, or catastrophe. As soon as practicable after invoking section 333 of chapter 15, the President must notify Congress of his determination to exercise this authority. However, within 24 hours of involuntarily calling to active duty members of the reserve components, the President must submit to Congress a report, in writing, setting forth the circumstances necessitating this action and describing the anticipated use of these members.

Alberto Gonzales could drive a tank through the vague language you see up there.

They did this in a very subtle way. It's hard to notice unless you're looking for it.


* Section 522 (House section 511) extends from 270 days to 365 days the period for which the Selected Reserve and Individual Ready Reserve may be involuntarily called to active duty.

* Section 1076 (Senate section 1042):

o Amends the "Insurrection Act" (i.e., Chapter 15 of title 10, U.S. Code) by:

§ Changing the title of chapter 15 of title 10, U.S. Code) from "Insurrection" to "Enforcement of the Laws to Restore Public Order";

§ Changing the title of section 333 of chapter 15 from "Interference with State and Federal Law" to "Major Public Emergencies; Interference with State and Federal Law";

§ Clarifying the President's authority, under section 33 of chapter 15, to use the armed forces, including the National Guard in Federal service, without a request from a State governor, to restore order and enforce Federal laws in cases where, as a result of a terrorist attack, epidemic, or natural disaster, public order has broken down; and

§ Including those who are obstructing the laws to the existing requirement for the President to issue a proclamation ordering insurgents to disperse and retire peaceably to their abodes within a limited time.

o Amends Chapter 152 of title 10, U.S. Code, to authorize, with certain limitations, the President, in any situation he determines to exercise the authority provided in section 333 of chapter 15, to direct the Secretary of Defense to provide supplies, services, and equipment (e.g., food, water, utilities, transportation, search and rescue, medical care, and other assistance necessary to save lives and property) to persons affected by the incident.

o Amends section 12304 of title 10, U.S. Code, eliminating the limitation imposed on the President's authority to involuntarily call to active duty members of the reserve components to perform law enforcement and other duties in response to serious natural or man-made disasters, accidents, or catastrophes to only those incidents involving terrorist or weapons of mass destruction threats or attacks.