Government and Disasters: The Emergency Commandeering Option
Hurricane Katrina demonstrated the problem, inherent to federalism, of federal-state coordination in responding to emergencies. When emergencies overwhelm localities and states, an effective response requires the assistance of the national government. Yet the national government itself is ineffective if it cannot quickly and efficiently coordinate and work with state and local personnel who—because they vastly outnumber federal civil personnel and are in the immediate vicinity of the emergency—necessarily carry out much of the response effort on the ground.
Thus, when it became clear that state and local officials could not deal adequately with Katrina’s aftermath, the President requested Governor Louisiana Kathleen Blanco to place New Orleans’ police under the control of federal officials so they could coordinate the overall response. Concerned with yielding control, the Governor refused the President’s request. As a result, federal and state personnel responded to the hurricane’s aftermath without the benefits of a single command structure; while people perished in New Orleans, officials argued about who was actually in charge.
So far, the only solution presented to this problem of federal-state coordination is itself highly problematic: the federal government can bypass civilian workers entirely and deploy the national military in their place. During Katrina the President considered this option, and the President has since called on Congress for specific authority to mount a military response to future domestic emergencies. However, the use of troops, currently prohibited in many circumstances under the Posse Comitatus Act of 1878, carries risks: professional soldiers, armed and ready for warfare, might produce order at the price of liberty.
There exists an alternative solution to the problem of federal-state coordination in emergencies, one that has been used at various times in our history, and that is based on some forgotten provisions of the Constitution. The solution is to allow the national government, in responding to certain kinds of emergencies, to call into periods of mandatory federal service local law enforcement and other personnel of the state in which the emergency occurs and, where needed, personnel from neighboring states.
During emergencies, these state employees would serve, with compensation, under the command of the President. As a result, the federal government would be empowered to direct the response effort and it would no longer be stymied by the vagaries of state and local bureaucracies. Under this scenario, therefore, the President would not have required Governor Blanco’s agreement to federalize New Orleans police: the order would have issued directly to the police department. The national government would also have been entitled to deploy to New Orleans police officers and other personnel from Arkansas, Texas, and other neighboring states.
The obvious objection to the proposal is that it entails a form of commandeering: the U.S. Supreme Court has ruled that under the Tenth Amendment, the federal government may not commandeer state legislatures or executive personnel.
Yet the anti-commandeering objection is misplaced. In provisions largely forgotten in modern times, the Constitution specifically authorizes the federal government to commandeer state personnel in periods of emergency. In the eighteenth-century, the principal personnel of state government were the state’s militiamen: militia units, operating under the authority of the state, were responsible for maintaining security, keeping order, quelling disturbances, and enforcing the state’s laws.
By the time of the constitutional convention, it had become clear that in certain emergency situations, a state’s militia, operating alone, would be inadequate to the task of mounting a response. Disturbances like Shays’ Rebellion in western Massachusetts in January 1787 had highlighted the need for a federally coordinated response to the most serious emergencies arising within the states. Yet the revolutionary generation deplored the idea of allowing the federal government to maintain and deploy large numbers of federal troops or other federal personnel.
The result of these competing concerns was that the 1789 Constitution permitted the federal government to commandeer, on a temporary basis, state militiamen in order to deal with three kinds of emergencies: invasions, insurrections, and opposition to federal law. Article I of the Constitution authorized Congress to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Article II made the President “Commander in Chief . . . of the Militia of the several States, when called into the actual Service of the United States.” So as to ensure those militiamen would be trained and equipped when called into periods of federal service, Article I further gave Congress power to “provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.”
Together, these provisions allowed for the federal government to respond to emergencies, without the need to deploy the national military or other federal personnel in large numbers. Nothing about the Tenth Amendment suggests that it altered this power of the national government to place the militia in federal service under these specified circumstances. For much of the nation’s early history, Congress called upon militiamen to deal with emergencies—for example, defending frontiers, putting down insurrections, and quelling opposition to federal laws—and paid them for their services.
The militia units of 1789 no longer exist. However, the federal government’s emergency commandeering power should be understood today to apply to law enforcement, emergency personnel, and other state employees who perform the duties once allocated to the militia. Notably, the Constitution does not define the term “militia,” and, in exercising its commandeering powers, Congress itself determined who was part of the militia for constitutional purposes. Congress can, therefore, specify today that, within the meaning of the Constitution, the militia comprises the states’ police officers, firefighters, and emergency responders.
In dealing with emergencies, the federal government is entitled to call these state employees into federal service. Further, just as the federal government once deployed militia units from one state to another, the emergency commandeering power allows the federal government today to send a state’s employees into other states where emergencies exist.
At the same time, the Constitution specifically limits emergency commandeering to times of invasion, insurrection, and opposition to federal law. Some kinds of emergencies—for example, a terrorist attack—clearly fall within these parameters. Other emergencies—for example, a forest fire—are less obviously within the scope of national power. Still, many emergencies will trigger the commandeering power because of their secondary effects: as New Orleans showed, natural disasters frequently produce riots and other forms of lawlessness within the constitutional conditions for federal deployment of state personnel.
A renewed understanding of the Constitution’s emergency commandeering provisions offers the best option for enhancing the nation’s ability to respond effectively to many kinds of emergencies, without the need to send the national military into our towns and onto our streets. In learning from Katrina and preparing for the next emergency, the possibility of emergency commandeering must be given serious consideration.