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 take the lead 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. 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 examining the most recent effort to modify the statute, the Enforcement of the Laws to Restore Public Order Act (“Enforcement Act”), which was repealed in 2008. This Article suggests that the Enforcement Act, passed in response to the government’s shortcomings during Hurricane Katrina, was not in the strictest sense a power grab by the Executive Branch. Rather, the Enforcement Act provided, in many instances, much needed clarity to the Insurrection Act and offered benefits to both states and the President.

In addition, this Article asserts that the Enforcement Act if in effect in 2005 would not have necessarily improved the government’s response to Hurricane Katrina. This is because the Enforcement Act, like the Insurrection Act, failed to address one of the major practical problems associated with the domestic deployment of the military, public opinion. This concern over how the public views the domestic use of Active Duty troops was a driving force in why the Insurrection Act was never invoked during Hurricane Katrina.

The Article concludes by offering possible solutions to minimize the negative impact of public opinion. In addition, the Article examines other possible improvements to the Insurrection Act not previously addressed 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.