September 30-October 17, 2006: Congress Gives President Power to Deploy Federal Troops at Will

Congress rewrites a two-centuries-old prohibition against the president using federal troops, or state National Guard troops acting under federal control, to act as police on domestic soil. The prohibition dates back to the Insurrection Act of 1807, which stated that the only circumstance under which the president could use troops to enforce the law against US citizens is during a time of armed revolt. The ban on using troops against citizens was strengthened by the 1878 Posse Comitatus Act, which forbids any government official from using military soldiers as police without specific authorization from Congress. The new law stems from the reported lawlessness that swept New Orleans after Hurricane Katrina devastated large parts of the city. The governor of Louisiana, Democrat Kathleen Blanco, refused to allow the federal government to take over the evacuation of the city, fearing that the change would amount to martial law (see 11:00 am EDT August 25, 2005). After this rejection, and the devastation wrought in Texas by Hurricane Rita just weeks later, President Bush began discussing the idea of a new law that would allow the president to impose martial law in a region for reasons other than citizen uprisings. He called it “making the Department of Defense the lead agency” in handling emergencies such as those created by Katrina and Rita, or by another terrorist attack on the scale of 9/11. (Former Justice Department lawyer John Yoo argues that the president does not need any new laws because his inherent authority as commander in chief lets him send federal troops anywhere he likes, no matter what the law says.) A year later, Congressional Republicans slip a provision into a large military appropriations bill allowing the president to deploy federal troops as police at his discretion, regardless of the possible objections of state governors. Any situation in which the president feels the “constituted authorities of the State or possession are incapable of maintaining public order” can trigger military control of a city, county, or state at the president’s behest. Bush signs the law into effect on October 17 with virtually no debate or public discussion. [Savage, 2007, pp. 316-319]