Congress works to undo changes to Guard law - Army News | News from Afghanistan & Iraq - Army Times

Congress works to undo changes to Guard law

Members of the House and Senate National Guard caucuses moved Wednesday to reduce the president’s power to declare martial law and to put some ambiguity back into the Insurrection Act.

They are attempting to undo changes made last fall in that law that clarified, and appear to have strengthened, presidential powers to call up National Guard forces for domestic law enforcement duties without the consent of their state governors.

The new law, included in the 2007 Defense Authorization Act, was requested by the Bush administration in the wake of Hurricane Katrina to strengthen presidential powers to assign the National Guard to policing actions after a natural disaster or terrorist attack. These powers already existed under the Insurrection Act, an 1807 law, but the exact circumstances under which troops could be used and the power-sharing arrangements with governors were unclear.

Under the new law, effective Sept. 30 of this year, the president can call up the National Guard for law enforcement duties in a variety of circumstances, such as natural disaster, terrorist attack, a health epidemic or any other emergency when the president decides that a state or states cannot maintain public order. Generally, only a governor, not a federal authority, can call up the Guard. The change also drops the word “insurrection” from the law. The new authority is called “enforcement of the laws to restore public order.”

The National Governors Association, the National Guard Association of the United States, the Adjutants General Association and the Enlisted Association of the National Guard of the United States all opposed the change, and have asked for help getting it overturned.

Sen. Patrick Leahy, D-Vermont, co-chairman of the Senate National Guard Caucus, said the law should never have been changed without consulting governors, mayors, sheriffs and the leaders of state Guard organizations.

“When the Insurrection Act is invoked, the president can — without the consent of the respective governors — federalize the National Guard and use it, along with the entire military, to carry out law enforcement duties,” Leahy said. “This is a sweeping grant of authority to the president.”

The change, Leahy said, “runs counter to our founding principles, to the optimal use of our superb National Guard here at home, and to whatever sensible reforms are needed to improve our nation’s emergency response capabilities.”

This is not a fight between Democrats and Republicans. Sen. Christopher “Kit” Bond, R-Mo., a co-chairman of the Senate caucus and a former governor, doesn’t like the change, either. “I am very concerned with the imprudent change in law,” he said. “Not only do our nation’s governors now have less control over their Guard units, the president is also provided with the unnecessary and unprecedented power to invoke martial law.”

Leahy and Bond introduced S 513 on Wednesday, a bill that would restore the original Insurrection Act language. Similar legislation, HR 869, was introduced in the House by Rep. Tom Davis, R-Va., co-chairman of the House National Guard Committee.

“This usurpation of power by the executive branch is unhealthy, unwise and unworkable,” said Davis. “Governors know best when and where and how to deploy the Guard within their borders, and only in the most extreme cases should this power be abridged.”

Davis warned about the potential for abuse of presidential authority, saying the Bush administration tried after Hurricane Katrina and after the 2001 terrorist attacks to put active-duty military commanders in charge over state and local officials. “It’s been the National Guard’s job since the birth of the republic to be the governors’ homeland response force.” Davis said. “The system we had in place has worked well for this entire time. There was no reason to change it, and now, there is no reason not to change it back.”