Congress Gets One Right, Restores Posse Comitatus

We here at The Thinking Heads have been awfully hard on our leaders thus far. We've attacked politicians for their lack of economic knowledge, their willingness to abandon principle for popularity and their propensity for deviousness. But I bring to you, our loyal reader(s?) what might be the first Thinking Heads post to celebrate a political action. And I'm willing to bet that it's one you didn't even know occurred.

This year, Congress passed HR 4986: National Defense Authorization Act for Fiscal Year 2008. A small but extremely important part of this bill repealed certain amendments to the Insurrection Act that were a part of the Defense Authorization Act of 2007. This is fantastic news and here's why.

The Insurrection Act (1807) is a set of laws that governs the President's power to institute martial law - that is, to deploy American troops (Army, Navy, Air Force, Marines - but not the Coast Guard) to put down insurrections and rebellion. The Insurrection Act is highly deferential to State and local governments and strictly limits the plenary power of the President. This Act, in tandem with Posse Comitatus Act, provides a barrier against domestic military policing.

However, last year, in section 1076 of the Defense Authorization Act, Congress amended the Insurrection Act. In response to the "growing threat of terrorist acts committed within the United States," Congress grossly expanded Executive power in dealing with "national emergencies." The Amendment reads in relevant part:

(1) The President may employ the armed forces, including the National Guard in Federal service, to--

(A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that--

(i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order

Whoa, hold on a second. Did you see what happened there? Here's a hint, read the text I've conveniently marked in red. Instead of allowing martial law only to quell rebellion or insurrection, Congress granted the President power to impose domestic military policing whenever there's a "serious public health emergency" or "other condition." Other condition! One cannot help but marvel at the astonishing ambiguity of the text. There are absolutely no clarifications as to what type of "other conditions" satisfy the "other condition" standard. Terrorist attack? Send in the Army. Communist uprising? Call in the Marines. Martians attack? Deploy the Air Force! NYC riots after Jets win the Superbowl? Anchors away, Navy!

The sad fact is, this alteration - which created the potential for persistent and severe Constitutional violations and deprivations of liberty, was barely noticed. And for you WWII history buffs, another sad fact is the frightening resemblance between this Act and the Reichstag Fire Decree. Not so much in text, but in spirit.

Thankfully, Congress woke up. Section 1068 of the Defense Authorization Act of 2008 completely repeals Section 1076 of last year's Defense Authorization Act. Thus, the original terms of the Insurrection Act have been restored and we can, once again, sleep comfortably in the knowledge that (for now) our President cannot impose military rule upon us. Thank you, Congress, for actually helping to restore our Constitutional freedoms and maintain a healthy balance of governmental power.

~JSK