Bush v. Federalism (Again) - Expanding Presidential Power Over the National Guard:

Both Republican and Democratic Governors are opposing a provision in a Bush Administration-supported appropriations bill that would greatly expand presidential power over the National Guard, as the Washington Post explains here:

The nation's governors on Saturday launched a bipartisan drive to block a move to expand the president's authority to take over National Guard troops in case of natural disaster or homeland security threats.

At a closed-door luncheon on the opening day of the annual summer meeting of the National Governors Association, the chairman, Arkansas Gov. Mike Huckabee (R), told colleagues that a provision in the House-passed defense authorization bill would end the historic link between the states and their Guard units.

Huckabee and the association's vice chairman, Arizona Gov. Janet Napolitano (D), plan to ask all the governors at the session to sign a letter of protest Sunday aimed at killing the provision when House and Senate conferees meet next month on the bill.

Huckabee told reporters that the move to shift control of the Guard to the president during national emergencies "violates 200 years of American history" and is symptomatic of a larger federal effort to make states no more than "satellites of the national government."

Iowa Gov. Tom Vilsack, the senior Democrat, called the proposal "one step away from a complete takeover of the National Guard, the end of the Guard as a dual-function force that can respond to both state and national needs....."

Under the provision, the president would have authority to take control of the Guard in case of "a serious natural or manmade disaster, accident or catastrophe" in the United States.

Huckabee said he does not know if President Bush wants that authority, but said "the administration is supporting this."

For the text of the National Governors' Association official letter to Congress opposing this provision, see here.

As I have pointed out in my forthcoming article on the Raich medical marijuana decision, the Bush Administration has promoted numerous initiatives to expand federal power at the expense of the states, including in the No Child Left Behind Act, the Federal Marriage Amendment, the Terri Schiavo case, assisted suicide, medical marijuana, and other policies. This has caused a number of liberal academics, pundits, and politicians (see the article for cites) to rethink their traditional support for a high degree of political centralization. The opposition of liberal Democratic governors to Bush's plan to expand federal control of the National Guard is an extension of the trend.

There are two key questions about the Administration-supported plan to expand federal authority over the National Guard: is it constitutional, and is it a good policy?

The first question is easier to answer. Under Gonzales v. Raich, Congress' constitutional power to regulate "Commerce . . .among the several States" has been interpreted to include virtually any activity that has even a remote connection to or effect on the national economy (detailed explanation in my article linked above). The National Guard surely has substantial economic effects, so Congress has the right to regulate it under Raich.

What if, however, you believe as I do that Raich was wrongly decided? Congress probably still has the power to enact this legislation, but the answer is less clear. Article I, Section 8, Cl. 15 of the Constitution gives Congress the power "To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions." Section 8 Clause 16 gives Congress the power "To provide . . . for governing such part of the [militia] as may be employed in the service of the United States," which presumably includes the power to put them under presidential control.

Dealing with a "serious natural or manmade disaster, accident or catastrophe" does not count as suppressing insurrections or repelling invasions. It often will, however, involve "execut[ing] the laws of the union," as any "serious" disaster is likely to be accompanied by lawlessness of the type that we saw last year during Hurricane Katrina. To be sure, most of the crimes that occur in the wake of natural disasters are likely to be state rather than federal offenses (e.g. - the looting and assault that occurred in the first few days after Katrina). Enforcing these laws does not count as "executing the laws of the union," which refers to federal law. In practice, however, a mass outbreak of lawlessness over a wide area is likely to involve violations of federal law as well as state law. For example, looters might damage federal property, interfere with the delivery of the U.S. Mail, and so forth. Thus, I tentatively conclude that the proposed National Guard bill is likely to be Constitutional, at least as applied to most real-world "serious natural or manmade disasters."

Is it, therefore a good idea? On that score, I have serious doubts. Presidential control over National Guard units engaged in combat makes good sense in the case of an attack by a foreign enemy, since it is important for all our forces to be under a unified command. As the text of the Constitution suggests, it also makes good sense in the case of large-scale "insurrections," especially if local authorities actually support the rebellion (as during the Civil War) or if they are using the National Guard to obstruct the enforcement of federal law (as when John F. Kennedy nationalized the Alabama Guard to prevent Governor George Wallace from using it to obstruct desegregation). Finally, presidential control may be preferable to state control in cases where a natural disaster effects a large number of different states simultaneously; if state governors are left in control in such a situation, each will prefer to keep his Guard troops in his own state rather than allocate them to where they may be most needed.

In the case of a disaster that primarily affects just one state, or a small number of neighboring states, however, the case for presidential control is much weaker. State governors have stronger incentives to address such local disasters effectively than the president does and they are likely to be more familiar with local conditions. Mishandling a major natural disaster within his own state will be politically very costly to a governor, while similar mistakes will have much less impact on the president's political career, since most of his constituents will not be affected, and in any event the public judges presidents on a much wider range of issues than governors.

Things are a bit more complicated if the disaster affects 2 or 3 neighboring states rather than just one. However, in such cases neighboring state governments will have strong incentives to make joint plans ahead of time in order to optimize the use of their resources. Unlike in cases where a large number of states are involved, transaction costs and negotiation costs are likely to be relatively low, or at least no higher than those imposed by federal control.

A final troubling aspect of the National Guard provision before Congress is that it seems to leave it up to the president himself to decide what counts as a sufficiently "serious" disaster to justify federalizing the Guard. This makes it all too easy for the president to declare the existence of a "disaster" on the basis of flimsy evidence and then take control of Guard units in order to punish state governments who oppose his political agenda. To be clear, the danger is not that the President would use the Guard to attack state governments militarily, but that he could use control of the Guard as a political weapon in order to force states to adhere to his agenda or risk losing control of their Guard units.

If you are a liberal Democrat, would you really want President Bush to have this power? If you are a conservative Republican who believes that Bush wouldn't abuse such authority, ask yourself how you would feel about Hillary Clinton having the same power if she gets elected president in 2008.

For these reasons, I think that the measure goes too far, even though it is probably constitutional. It is also unfortunate that it is part of a broader pattern of subordinating federalism concerns to advance the Administration's political agenda. In this case, unlike most of the others, Bush's policy is under attack from many in his own party, and hopefully that will persuade him to desist.

UPDATE: Some commenters claim that the National Guard is not part of the state "militia" referred to in Article I, Sect. 8, Cl. 15-16 of the Constitution and is a purely national armed force subject to unlimited federal control. I don't think that this correct. In Perpich v. Dept. of Defense, 496 U.S. 334, 339 (1990), the Supreme Court recognized that National Guard units "maintain an identity as . . . part of the militia described in Art. I, ยง 8, of the Constitution." For a detailed discussion of the legal status of the Guard, see here.

UPDATE #2: I fully recognize that part of the motivation for this proposal is the reality of state and local government failure in Louisiana during Hurricane Katrina. I have blogged about some of those failures here. On the other hand, President Bush and the federal government also made numerous mistakes. Moreover, state and local officials in Mississippi (which was also hit hard by Katrina) seem to have performed reasonably well (see, e.g., here and here). While there was plenty of blame to go around during the Katrina disaster, it does not prove that federal control of the Guard during emergencies is preferable as a general rule.