Stetson Law Review
As the Hurricane Katrina relief effort illustrates, both Governor Blanco and President Bush, like previous elected officials before them, struggled to properly and promptly deploy federal troops during a domestic emergency. This shortcoming was due to problems associated with: (1) interpreting the Insurrection Act; (2) federalism; and (3) public opinion. This article, divided into four parts, attempts to resolve those problems, or at least decrease the likelihood of their recurrence, by offering suggestive changes to the Insurrection Act. Part II provides a general overview of the Insurrection Act. It begins with a brief discussion of two early episodes of civil disorder: Shays’ Rebellion, the catalyst for the Insurrection Act, and the Whiskey Rebellion, which provided the first test of the statute. Part II concludes with the Insurrection Act’s codification. Part III examines the most recent effort to clarify or update the Insurrection Act, the Enforcement of the Laws to Restore Public Order Act (Enforcement Act). The Enforcement Act, often viewed as a power grab by the Executive Branch, was passed in the immediate aftermath of Hurricane Katrina and repealed shortly thereafter. While generally supportive of the Enforcement Act, Part III asserts that it would have had little effect on the government’s response to Hurricane Katrina. This is because the Enforcement Act, while adding clarity to the Insurrection Act, failed to address the two other major issues associated with deploying the military domestically: (1) federalism, or state and federal relations; and (2) public opinion. Thus, like the Insurrection Act, President Bush probably would not have invoked the Enforcement Act in response to Hurricane Katrina. Part IV offers possible solutions beyond the Enforcement Act to both reduce federal-state friction and minimize the negative impact of public opinion when federal troops are used domestically. For instance, Part IV suggests creating uniform standards by which governors can request military assistance from the President. Part IV also advocates reinstating judiciary advisory opinions to help determine when troops should be deployed domestically.
Copyright © 2010, Stetson Law Review
Stetson Law Review
Place of Publication
Hoffmeister, Thaddeus A., "An Insurrection Act for the 21st Century" (2010). School of Law Faculty Publications. 29.