Can the Constitution survive Katrina?

U.S. CONSTITUTION:

"... provide for the common defense and general Welfare of the United States ..."

The quote above is the middle third of Article 1, Section 8, Clause 1 of the Constitution. It's a good place to start this discussion since this section includes 18 clauses which together set forth most of the legislative authority of the US Congress. There is a tendency to regard that bit about "the general Welfare" (which also appears in the Preamble) to be so elastic as to stretch to cover any object those in power might wish to attempt. However, even the arch Federalist Alexander Hamilton declared that such a reading would render the recitation of specific grants of congressional authority entirely superfluous. Rather, the powers of the general government are few and defined and the phrase "the common Defence and the general Welfare" merely indicates the purposes for which those powers are delegated to the general government.

Search Article 1, Section 8 all you like and you will not find any authority to fix the damage from hurricanes or do any other act of charity, however worthy or needy the objects of that charity might be. (You will also find no authority for most of the other things the government does - education, health, etc. - but that is a subject for another day.) Just as US Rep. David Crockett of Tennessee found out in that story which I posted recently.

Clauses 11 through 16 relate to the Army, Navy and Militia. We shall return to them later.

Article 4, Section 4, provides that the general government "... shall protect each of them [the States of the Union] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." This was the crux of the problem with Gov. Blanco and the use of federal troops. Even if there is no doubt that local and state authorities are unable to maintain public order, the federal government cannot just move in; the assistance of the general government must be requested by the appropriate state authority.

By contrast, Article 1, Section 8, Clause 15 does give to Congress the power "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;" which is a somewhat broader mandate. In response to the Whiskey Rebellion, where civil tax officers had been assaulted and killed, President Washington rode at the head of a column of militia into western Pennsylvania to enforce the tax on spirits. Fortunately, this sort of thing did not happen often. Rather, there was a significant history of the Army being used under the command of US Marshals (see the article on Posse Comitatus which I posted recently). Of course, some authorities argue that the militia referred to here no longer exists as Clause 16 reserves to the states the power to appoint the officers of the militia.

Some commentators try to stretch the president's power as commander in chief of the Army and Navy, and of the Militia when in actual service of the US, in Article 2, Section 2, Clause 1, to say that the president can send troops wherever and whenever he wants for any purpose. But this reading would make a nullity of any limit on the power of the executive. Placing the president at the top of the chain of command cannot extend to the armed forces powers and duties which they don't already have under the Constitution and laws of the US.

Following the War, the Congress set up a system of military government which superseded the operation of the duly constituted civil administrations elected after the end of hostilities. Known as "Reconstruction" this episode did not cover the Army with glory. As a part of the deal Republicans made to get Democrats to go along with the coup d'etat of 1876, a promise was made to end military government imposed by the prior Republican coup. The troops were removed from their pretended authority over the civil governments of the southern states in 1877 and the next year Congress passed the Posse Comitatus Act.

Posse Comitatus is a very old concept in our British legal tradition and refers, literally, to the power of the county. Dating back to a time before full time police departments existed, there were occasions like the pursuit of fugitives where sheriffs, sergeants, constables, marshals and certain other officials having law enforcement responsibility could call forth the support of citizens to assist in enforcing the laws. Remember all those western movies where you've seen the sheriff leading a posse? This is where the legal authority of that band of armed men comes from.

Under the Posse Comitatus Act (PCA), the use of the Army as a posse comitatus for purposes of domestic law enforcement was greatly restricted. In recent years, however, especially in regard to the war on drugs, rather large loopholes have been opened in that prohibition. (See the Washington University Law Review article on this subject linked in a prior post.) PCA originally applied only to the Army, when the Air Force became a separate service, it fell under PCA. Although the Navy and Marines are not restricted by PCA, the Department of Defense has adopted policies which treat them as if they were covered. Yet, important as PCA is, it is more important to focus on the Constitution itself.

At least two articles of the Bill of Rights to the Constitution would seem to be implicated in disaster relief. Amendment 3 prohibits the peacetime quartering of soldiers in private homes without the owner's consent. Amendment 5 requires just compensation for property taken for public use.

As near as I read it, that is all the Constitution says that relates to this issue.

So, leaving aside the question whether any of the charity and natural disaster activities of the general government are permitted under the Constitution, what can the the military do?

First, it is obvious that using the armed forces to deliver bottled water and MREs does not present any issues related to PCA or the requirement of a state request to suppress domestic violence. This would also seem to be the case for sending in helicopters, boats, LAVs, etc. to rescue stranded persons. And, for using engineers to clear and make temporary repairs to roads and bridges. Or, to set up clinics and hospitals to serve the ill and injured.

The problems all revolve around the law enforcement role. And the trouble there is that they have to either restrict the law enforcement role of federal troops to federal laws or get the state's consent. In a terrorist incident response, you might get away with calling it a response to invasion or insurrection, but that still doesn't get to the point of enforcing the laws of the states and localities.

Using the military, even the military police, in a domestic law enforcement role is highly problematic. In today's army, military police have several roles, but the primary one is a fast-moving light infantry operating in small units. Yes, they do train to establish and operate prisoner of war camps, expedite logistics by controlling traffic in rear areas, and some other things that superficially resemble civilian law enforcement. But the use of force doctrine is much different.