The Insurrection Act governs when the
President can declare a form of 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. Posse comitatus, a
broad law that generally prevents the military from
policing within the domestic United States, does not
apply when the act is invoked.
Until the “Insurrection Act Rider”
was enacted in the fall of 2006, U.S. law focused on enabling the
President to invoke the Insurrection Act during violent situations where
the states or local communities were resisting lawful orders. The
intent of the law, as the title suggests, was to deal with insurrection
from individuals or groups. The law was not designed to address other
situations, including natural disasters, or attacks from outside the
country.
In its
original form, the Act has been invoked sparingly --
only ten times in the past five decades. Over the past
40 years, the act has only been invoked with the consent
of the governors, using authorities under other sections
of the U.S. Code that allow states to invite in federal
military forces for police functions.
Under the new language,
added to the law in the fall of 2006, 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 under the
nebulous term of “other conditions."
This change makes it easier
for the President to invoke the Act in cases beyond an
insurrection – cases which were not intended under the
previous purpose of the Act. With these succinct but
sweeping changes, the President now does not have to
contact or collaborate with any state agency in taking
control of the Guard and injecting federal military
forces, to carry out patrols or make arrests. The
President has to notify but not explain to Congress that
he or she believes that states cannot handle the
situation.
The change goes
against practical and historical arrangements for
handling emergencies, which constitutionally and
practically have been headed and handled by governors
and local officials. When operating under a governor in
a state status, the National Guard is not bound by
posse comitatus and can integrate seamlessly with
local, state, and federal law enforcement agencies and
first responders.
RELATED:
Statement Of Senator Patrick Leahy,
Hearing On
“‘The Insurrection Act Rider’
And State Control
Of The National Guard”
April 24, 2007
Questions:
The governors,
adjutants general and local law enforcement officers
were not consulted about these far-reaching Insurrection
Act changes. They are united in strongly asserting that
the time-tested system for using the National Guard in
emergencies and requesting federal assistance -- “when
necessary” -- works well and should not be changed.
Statements, Letters, And Releases About
The Insurrection Act Rider
Sen. Patrick Leahy is joined by
Adjutants General from across the country in a
2006 press conference. Leahy's legislation
to repeal changes made to the Insurrection Act
has the support of the Adjutants General
Association, the
National Guard Association and other
organizations.
Resources from the Congressional Research Service:
Insurrection
Act
