Abstract

Throughout America’s history there has been a fundamental disagreement over how best to deal with large scale civil disorder within the United States. Whether brought about because of natural disaster, riot, rebellion, public health emergency or terrorism, Americans have disagreed on who should manage the civil unrest associated with a domestic emergency. More specifically, they differ, especially when military intervention is required, over whether the state or federal government should serve as the lead agent in responding to these crises.

Lately, it appears that the pendulum has swung in favor of increased federal government involvement, especially with respect to providing a larger role for the Active Duty military. For example, the Army recently deployed two Active Duty brigades to Northern Command. These units serve as an on-call federal response force for domestic emergencies in the United States--a job traditionally performed by state National Guard units under the command and control of their respective governors. Also, by 2011, the Department of Defense plans to have 20,000 additional Active Duty service members deployed within the United States. This paradigm shift, one that is unlikely to reverse itself in the near future, is due to a variety of modern day factors: 9/11; increased foreign deployments of the National Guard; Hurricane Katrina; and the amplified threat of a future large scale terrorist attack either in the U.S. or abroad.

One consequence of this shift in policy is a renewed interest in the Insurrection Act, which is the focus of this Article. As some are aware, the Insurrection Act is the principal authority relied upon by the President to deploy Active Duty troops domestically to respond to civil disorder. The Insurrection Act is an exception to the Posse Comitatus Act which has historically restricted the use of the Active Duty military within the United States.

This Article provides a broad overview of the Insurrection Act to include discussing Hurricane Katrina and the Detroit Riots of 1967. In exploring these two prior episodes of civil unrest, the Article examines the three major factors influencing whether the Insurrection Act is invoked: (1) ability of the President and the governor to understand and apply the statute; (2) the relationship between the governor and the President; and (3) public opinion. In addition, the Article examines the most recent “unsuccessful” effort to modify or update the Insurrection Act, the Enforcement of the Laws to Restore Public Order Act (“Enforcement Act”). Here, the article demonstrates that the Enforcement Act, contrary to Congressional sentiment, was not in the strictest sense a Presidential power grab.

Finally, the Article looks at other possible modifications to the Insurrection Act outside of those made by the Enforcement Act. The goal of this Article is to further the debate and come up with an improved, updated Insurrection Act that addresses both current and future challenges that are sure to arise as this country grows increasingly reliant on the Active Duty military for homeland security.