Victor Hansen

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November 08, 2006

Comments

James Carlson

Again, not a correction so much as an attempt to clarify the relationship between PCA & Insurrection Act. The PCA provides: "[w]hoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress...." The Insurrection Act would be that Act of Congress...would there need to be a Presidential finding or reference to the President's "determination" (looking back at the Insurrection Act) to get to that "express[]" threshold in the PCA?

Bobby Chesney

I'm fairly sure that the PCA's "expressly authorized" language is not understood as requiring any special formalities to be met, but rather simply that the President be acting pursuant to Constitutional or statutory authority that expressly empowers the President to act. The Insurrection Act clearly fits that description; I suspect (but do not know) that in actual practice an order issued pursuant to that Act might memorialize these relationships, but don't think this would be strictly required as a legal matter.

Jennifer Elsea

The curious thing about the "domestic violence" language is that it echoes the "Guarantee Clause" of the Constitution (Art. 4, cl. 4), which obligates the federal government to render assistance to states experiencing "domestic violence," but only upon the application of the state's legislature (or its governor, if the legislature isn't functioning). The part of the Insurrection Act that appears to cover federal intervention upon the request of the state government is 10 U.S.C. 331, which, curiously, doesn't mention "domestic violence" at all. It requires an "insurrection" before the President need consider sending in troops, if such assistance is requested in the first place. Section 333, which originated as the Ku Klux Klan Act, does not require an invitation or permission of the state government, and is to be invoked to enforce the Fourteenth Amendment when the state law enforcement officials can't (or won't) provide equal protection, or to enforce other federal law (in particular, decisions of federal courts) when the state government can't (or won't) do it. Another part of the Insurrection Act, 10 U.S.C. 332, allows the President to send in troops to enforce federal law whenever "unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States" make ordinary processes ineffective. From its history, section 333 appears intended to cover situations where state and federal authorities are at odds. So, while it is true that the new section 333 does not really grant any new authority (in fact, it removes the "any other means"), and still requires either an equal protection violation or a situation in which federal law cannot be enforced (in which case Congress has the authority under the Constitution to call forth the militia), an argument might be made that the clarification of section 333 (but not 331 or 332) to include hurricane-induced mayhem, etc., encourages the President to send in troops to enforce the law whenever he deems "domestic violence" to be occurring, whether or not the state government requests assistance (that is, more so than under the original language). Of course, all of this is a federalism argument having little to do with martial law. The real issue appears to be command-and-control over the state National Guard. I don't think the change was meant to clarify the relationship between the Insurrection Act and the Posse Comitatus Act -- that was pretty clear to begin with, and at any rate isn't any clearer after the amendment.

Bobby Chesney

Thanks for drawing attention to section 331 and 332 as well, and to the underlying historical context. I think you're right that the main issue these days in this area of the law is the federalism angle. Extensive federal reliance on the National Guard during the past few years in connection with operations in Iraq (and Afghanistan?) have certainly increased interest in that question . . . .

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