AN INSURRECTION ACT FOR THE TWENTY FIRST CENTURY

Thaddeus Hoffmeister*


Better twenty-four hours of riot, damage, and disorder than illegal use of troops.
President Theodore Roosevelt, as quoted in Clayton D. Laurie & Ronald H. Cole, The Role of Federal Military Forces in Domestic Disorders, 1877–1945, at 179 (Ctr. of Military History, U.S. Army 1997)

https://www.stetson.edu/law/lawreview/media/document/an-insurrection-act-for-the-twenty-first-century.pdf


I. INTRODUCTION

Hurricane Katrina, with 140 mile-per-hour winds, was one of
the deadliest natural disasters to ever strike the United States.2
It impacted more than 93,000 square miles, caused approximately
$100 billion in damage, and displaced more than 770,000 people.3
Worse still, it killed more than 1,300 people, leaving many families devastated.4

* © 2010, Thaddeus Hoffmeister. All rights reserved. Assistant Professor of Law,
University of Dayton School of Law. LL.M., Georgetown University School of Law; J.D.,
Northeastern University School of Law; B.A., Morgan State University. The Author is
currently a Major in the Army National Guard. Before joining the University of Dayton
School of Law faculty, the Author served as a Legislative Director, Counsel, and Subcommittee Staff Director in the United States House of Representatives for four years. He also served as a Judge Advocate General (JAG) in Korea, Japan, and Washington, District of
Columbia, and clerked for the Honorable Anne E. Thompson in the United States District
Court of New Jersey. This Article benefited from the helpful suggestions provided at legal
conferences conducted at both Wake Forest School of Law and Ohio State University
Moritz College of Law. A special thanks goes to Professors William C. Banks, Chris Brown,
Jeannette Cox, Eric Chaffee, Jackie Gardina, and Jason Mazzone for their useful and
constructive suggestions. The Author would also like to acknowledge the work of his
research assistant, Ashley Russell. Of course, any mistakes in this Article are solely the
responsibility of the Author. Finally, this Article was made possible by a generous summer
research grant from Dean Lisa Kloppenberg of the University of Dayton School of Law.

 1. President Theodore Roosevelt, as quoted in Clayton D. Laurie & Ronald H. Cole,
The Role of Federal Military Forces in Domestic Disorders, 1877–1945, at 179 (Ctr. of Military History, U.S. Army 1997).



Using the Insurrection Act and Executive Power to Respond with Force to Natural Disasters

ABSTRACT

In the wake of Hurricane Katrina, Congress amended the Insurrection Act of 1807. The Act enables the President to deploy the military “to suppress, in any State, any insurrection, domestic violence, unlawful combination, or conspiracy.” The amended Act expands the

language of the original Act to include natural disasters, epidemics, or other serious public health emergencies, terrorist attacks or incidents, or other conditions. Opponents of the amendment, most notably all fifty governors, criticize the amendment as a presidential power grab aimed at suppressing the power of the states and increasing the role of the military in domestic affairs.

This paper argues that the amendment to the Insurrection Act does not affect the President’s existing powers to deploy the military domestically. Instead, this paper argues that the amendment merely clarifies the situations that justify the use of the military to respond to domestic disorder.

 An analysis of the historical use of the Act and the Act’s language indicates that justification for presidential action prior to the amendment focused on the extent, rather than the source of the domestic disorder. The changes made in October of 2006 provide explicit examples of situations that may lead to events of public disorder justifying the President’s invocation of the Act’s authority. In addition, political and historical limitations, along with limitations in the Act itself, will restrict presidential abuse of the power. Thus, the uproar over the recent changes to the Insurrection Act and the fears of martial law are unfounded

https://www.law.berkeley.edu/library/resources/disasters/Crockett.pdf