Via Instapundit
This story from the Washington Post suggests problems with coordination between state and federal authorities:
Louisiana did not reach out to a multi-state mutual aid
compact for assistance until Wednesday, three state and
federal officials said. As of Saturday, Blanco still had
not declared a state of emergency, the senior Bush
official said. . . .
Blanco made two moves Saturday that protected her
independence from the federal government: She created a
philanthropic fund for the state's victims and hired
James Lee Witt, Federal Emergency Management Agency
director in the Clinton administration, to advise her on
the relief effort.
I'm all for federalism, but this doesn't seem like the time for that sort of thing. I'm not clear on what legal authority the President has to simply take charge over a governor's objections; I'm not aware of that problem coming up before. Presumably Congress could -- subject to some fairly limited Constitutional constraints -- address this via legislation if necessary, though it's probably too late for that to do much good now.
<snip>
MORE STILL: Several readers note that the Post story seems to be wrong -- at least here is a proclamation of a state of emergency by Gov. Blanco from August 26. I suspect, however, that what the Post article refers to is a declaration that would place the National Guard under federal control. Here's a piece from the L.A. Times on that:
Although active-duty U.S. troops are being used in the
relief effort, constitutional limits prevent them from
performing law enforcement duties.
Pentagon officials stressed that only National Guard
troops, which are under the control of governors when
operating within the United States, may be given law
enforcement duties.
Only a presidential decree would allow active-duty
federal military troops to be brought into a law
enforcement mission, and officials said they did not
envision that would be necessary in this case.
Or am I missing something here?
<snip>
STILL MORE: This sounds right, though I haven't researched it independently:
Here's the quick legal skinny: There's a difference
between money and boots on the ground; the governor
(surprise!) immediately asked for the former.
Under the Posse Comitatus Act (18 U.S.C. § 1385), the
president can't use armed forces (including national
guard in federal service) for law enforcement absent
congressional directive. (Some courts, however, have held
that this does not apply to the Navy (U.S. v. Yunis, 924
F.2d 1086 (C.A.D.C. 1991)) and the Coast Guard (U.S. v.
Chaparro-Almeida, 679 F.2d 423 (5th Cir. 1982)), both of
which seem to be more useful here, since it looks like
that nobody without boats can provide any serious
logistical or enforcement functions in NO.)
But upon request of the governor, or perhaps on his own
initiative, the president can use the federal military by
invoking the Insurrection Act (10 U.S.C. §§ 331-34).
What's happening in NO might be called "insurrection"
or "rebellion," but that's a politically-dangerous
stretch.
Much more here.
proteinwisdom.com
Though I've taught National Security Law in the past, I've focused on espionage, surveillance and law enforcement issues, not so much on this sort of thing, suggesting that my syllabus has the same blind spot. . . .
YET MORE: Mickey Kaus has further thoughts on this, though I should note that federalism hasn't caused problems like this in the past, as far as I know.
slate.msn.com
instapundit.com
washingtonpost.com
proteinwisdom.com
