This Really Doesn't Look Good, Does It?

The American Conservative -- Working for the Clampdown

It only took a few paragraphs in a $500 billion, 591-page bill to raze one of the most important limits on federal power. Congress passed the Insurrection Act in 1807 to severely restrict the president’s ability to deploy the military within the United States. The Posse Comitatus Act of 1878 tightened these restrictions, imposing a two-year prison sentence on anyone who used the military within the U.S. without the express permission of Congress. But there is a loophole: Posse Comitatus is waived if the president invokes the Insurrection Act.

Section 1076 of the John Warner National Defense Authorization Act for Fiscal Year 2007 changed the name of the key provision in the statute book from “Insurrection Act” to “Enforcement of the Laws to Restore Public Order Act.” The Insurrection Act of 1807 stated that the president could deploy troops within the United States only “to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy.” The new law expands the list to include “natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition”—and such “condition” is not defined or limited.

These new pretexts are even more expansive than they appear. FEMA proclaims the equivalent of a natural disaster when bad snowstorms occur, and Congress routinely proclaims a natural disaster (and awards more farm subsidies) when there is a shortfall of rain in states with upcoming elections. A terrorist “incident” could be something as stupid as the flashing toys scattered around Boston last fall.

The new law also empowers the president to commandeer the National Guard of one state to send to another state for up to 365 days. Bush could send the Alabama National Guard to suppress antiwar protests in Boston. Or the next president could send the New York National Guard to disarm the residents of Mississippi if they resisted a federal law that prohibited private ownership of semiautomatic weapons. Governors’ control of the National Guard can be trumped with a simple presidential declaration.