Statement Of Sen. Patrick Leahy
On Legislation To Repeal Changes To The Insurrection Act (S. 513)
February 7, 2007

Last year, Congress quietly made it easier for this President or any President to declare martial law.  That’s right:  In legislation added at the Administration’s request to last year’s massive Defense Authorization Bill, it has now become easier to bypass longtime posse comitatus restrictions that prevent the federal government’s use of the military, including a federalized National Guard, to perform domestic law enforcement duties.  That change runs counter to our founding principles, to the optimal use of our superb National Guard here at home, and to whatever sensible reforms are needed to improve our Nation’s emergency response capabilities.

Today Senator Bond and I are introducing legislation to repeal these unwarranted and perilous changes, which were made to a little-known law called the Insurrection Act.  Our amendment replaces every word, comma, and period from the original act and returns it to its original form.  Repealing this ill-considered change in the Insurrection Act would allow Congress to have a more orderly, thoughtful, open and consultative discussion on whether such sensitive and massive powers should be changed, if at all.  It is difficult to see how any Senator could disagree with the advisability of having a more transparent and thoughtful approach to this sensitive issue.

The Insurrection Act is a Reconstruction-era law that provides the major exemption from posse comitatus – the legal doctrine that bars the use of the military for law enforcement directed at the American people here at home.  The Insurrection Act is designed to ensure that federal laws are enforced and to ensure that American citizens’ basic constitutional rights are respected and protected.  When the Insurrection Act is invoked, the President can — without the consent of the respective governors -- federalize the National Guard and use it, along with the entire military, to carry out law enforcement duties.  Treading as this does across basic constitutional issues relating to separation of power and to state and local sovereignty, this is a sweeping grant of authority to the President.  Because the use of the military for domestic law enforcement is so sensitive an issue, the Act has been invoked only sparingly since it was enacted.

The primary reason that the law has been invoked so rarely is that there has been an inherent tension in the way it was crafted.  Before it was changed last year, the law was purposefully ambiguous about when the President could invoke the Act in cases beyond a clear insurrection or when a state clearly violated federal law in its actions.  Because there was this useful ambiguity – a constructive friction in the law -- a President until now would have to use the power with great caution, and with the impetus for appropriate consultation.   

Yet by the time committee work was completed in the House and the Senate on the Fiscal Year 2006 Defense Authorization Bill, the law had been changed and that useful ambiguity had vanished.  In addition to the cases of insurrection, the Act can now be invoked to restore public order after a terrorist attack, a natural disaster, a disease outbreak, or — and this is extremely broad — “other condition.”  Restoring public order has suddenly become an entirely new purpose for the Insurrection Act.  And, as if to underscore this fundamental change, the conference committee changed the name of the Act from “Insurrection” to “Enforcement of the Laws to Restore Public Order.”

This significant change was made without consulting the Nation’s Governors, mayors, sheriffs, or the National Guard Adjutants General.  It was made without consulting the other relevant policy committees in the Senate and the House.  It was merely slipped in, at the Administration’s request, as rider to a bill that was hundreds of pages long.  And when the Nation’s Governors learned of the change and expressed their strong opposition, they were ignored, and this facilitation of presidential ability to federalize the National Guard – even over the objections of the Nation’s Governors -- remained in the bill that was signed into law by President Bush.

Now this President and future Presidents can more easily take control of the National Guard and use our entire military apparatus for law enforcement at home.  In a situation like another Katrina or even a more contained incident like a terrorist incident, the President will be able to bring in federal troops and take away control from the Governors, the Emergency Managers, the Sheriffs, and the state Adjutants General who know their communities best and are responsible for responding.

What we should be doing instead is buttressing the response abilities of these local and state officials.  We should ensure every State has a state-of-the-art emergency operations center, that our first responders have the best equipment and training, and that the National Guard has adequate equipment and available people at home to provide support.  Any federal assets — military or otherwise -- that might come into a State should be in a supporting and not commanding role.  The local officials who know their communities are in the best positions to control the situation, not the President or the military.

Some have argued that the changes made were only a clarification of existing law or that the Insurrection Act already gave the power to the President to use the military for law enforcement in an emergency.  I strongly disagree with that explanation, and so do the Governors, Adjutants General, and a host of other officials.  They see it, as Senator Bond and I see it, as a tangible and troubling expansion of the President’s powers and a parallel reduction in State sovereignty.  But if some believe the original Act already gave the President this expansive power, they should not object to bringing the law back to its original form.

Repeal of the recent changes to the Insurrection Act will help ensure that our National Guard and larger emergency response capabilities remain strong.  Repeal is crucial to ensuring that our Governors and local officials remain in control and that they are consulted when anyone considers overriding their authority.  Repeal is simply essential to ensuring the military is not used in a way that offends and endangers some of our more cherished values and liberties.

We enter this effort with the strong support of Governors and of the National Guard community, including the National Governors Association, the National Guard Association, the Adjutants General Association, and the Enlisted Association of the National Guard.  I ask unanimous consent that support letters from the National Governors Association, the Adjutants General Association, and the Enlisted Association of the National Guard be included at this point in the Record. 

Last year’s Insurrection Act rider reflects the general lack of close oversight that has taken a toll on our system of government.  I hope the days of rubberstamping are over, and I hope the Senate will quickly remedy this situation by considering and passing the bill that we introduce today.

# # # # #

Text of legislation, S.513.
Press release.
Letter of support from the National Governors Association.
Letter of support from the National Sheriffs' Associaiton.
Letter of support from the Enlisted Association of the National Guard.
Letter of support from the Adjutants General of the United States.
Letter of support from the National Guard Association.