FCNL’s Senior Fellow Dan Smith has prepared a thorough background memorandum on this issue: Usurpation of Power.
Summary:
The 2007 Defense Authorization Act did contain language to broaden the president’s powers to federalize National Guard units and to use federal troops in domestic situations. When the Defense Authorization Act went to a House-Senate conference, the Senate version included a section that was intended to strengthen the independence of the National Guard by raising its bureaucratic profile, requiring the Pentagon to provide more and better equipment, and emphasizing the Guard’s role in responding to domestic disasters. When the conference ended, these proposals had been stripped from the bill, and in their place were revisions “making it easier to usurp the governors’ control and making it more likely that the President will take control of the Guard and the active military operating in the states,” according to a statement by Senator Leahy on the Senate floor, just before the Senate approved the conference report.
Federalizing the National Guard is not a new practice – Presidents have used this option from time to time since the Whiskey Rebellion of 1791. But the laws which have allowed for this blurring of lines between federal and state authority have named certain conditions that must pertain before the President can take over control of the National Guard in a state without the request of that state’s governor. These conditions have been fairly limited to “insurrection, domestic violence, unlawful combination, or conspiracy” that deprives part of a state’s population of their Constitutional or statutory rights, or situations where the laws of the U.S. cannot be enforced “through normal judicial proceedings” because of “unlawful combinations, or assemblages, or rebellion.”
The new language loosens up the circumstances under which the President may federalize National Guard units or bring in federal troops. The president may use such troops to “restore public order” in times of major disasters, public health emergencies, terrorist attacks or incidents, or “other condition” or to “suppress any insurrection, violation, combination or conspiracy” if the triggering event (the disaster, attack, insurrection, violation, etc.) deprives part of the states’ population of the Constitutional or statutory rights, or “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.”
