Insurrection Act Restored: States Likely to Maintain Authority over National Guard in Domestic Emergencies   [open pdf - 322KB]

"Before 2006, the President had multiple legal bases available to authorize his use of federal military forces in a variety of law enforcement and natural disaster circumstances. Nevertheless, Congress amended the Insurrection Act in 2006 to create the Enforcement of the Laws to Restore Public Order. This statute stirred controversy as it arguably represented an unwarranted expansion of Presidential power. Additionally, while statute attempted to address the kind of lawlessness seen in New Orleans immediately following Hurricane Katrina in 2005, the provision arguably offered no improvement over the Insurrection Act in instances of lawlessness or the Stafford Act in instances of disaster. Without ever having been invoked, and in the face of strong opposition, the Enforcement of the Laws to Restore Public Order was repealed on January 28, 2008 and the previous Insurrection Act was restored. This monograph reviews the Enforcement of the Laws to Restore Public Order statute and concludes that it was prudent to repeal this legislation. Moreover, this monograph recommends that future laws and policies to improve disaster response across the whole-of-government and the private sector should be consistent with the principles in the 2008 National Response Framework, which advocates tiered response rather than a primarily federal response in most instances. The rare instances of catastrophic disaster that might require the President to shortcut tiered response and assume federal control at the outset of the situation should be clearly defined in law. "

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