100 Pages Posted: 10 Jan 2007
Date Written: February 2007
Federalism impedes the government's ability to plan for and respond to emergencies. Emergencies often transcend federalist divisions of power and responsibility, rendering unclear which level of government should respond. Though many emergencies require a coordinated response by local, state, and national government, getting different levels of government to work together in times of crises is difficult. Even when states and localities call for outside assistance, they resist undue federal interference in their affairs; a national government that lacks experience working with local actors on the ground can find it difficult to implement relief programs.
Hurricane Katrina, causing extensive damage in the Gulf Coast region in August of 2005, vividly illustrated how federalism undermines an effective response to emergencies - with deadly results. Despite years of emergency planning in the wake of the terrorist attacks of 9/11, and ample warning in the days preceding Hurricane Katrina that it would cause widespread destruction, no government - national, state or local - adequately prepared vulnerable communities. After Katrina struck, the governmental response was inept. Local governments in New Orleans and other towns were overwhelmed, unable even to communicate with their personnel on the scene. State governments found their resources stretched to breaking point. The national government, cautious about appearing too proactive, delayed its response until specifically asked to help. Federal and state personnel, unaccustomed to working together, mounted independent responses to the hurricane's aftermath and operated without the benefits of a single command structure. State officials rebuffed federal requests to assume overall control of the response efforts. While people perished, officials argued about who was actually in charge.
Future emergencies - an unwarned detonation of a crude nuclear device in an American city, for instance - could easily dwarf Katrina's impact. Given the widely-recognized failures of the government's response to Katrina and the urgent need for reform, some federal officials have proposed a dramatic solution: in a future emergency, rather than try to work with state and local response personnel, the federal government should simply deploy the military to take over the relief effort. Over opposition from every state governor, in October 2006, Congress passed a bill giving the President authority to deploy military forces to states and localities following a natural disaster or other emergency where specified federal interests are put at risk. Though this new law is not a wholesale authorization to use military resources in times of emergencies, critics contend that any domestic deployment of soldiers undermines civil liberties.
This Article proposes an alternative solution to the problems federalism presents in times of emergencies. The proposal, which I call emergency commandeering, is based on some provisions of the Constitution that are today largely forgotten but that were used regularly in earlier years of the nation. Under my proposal, when the federal government responds to certain kinds of emergencies, it can call into periods of mandatory federal service the emergency response personnel of the state in which the emergency occurs and, if necessary, emergency response personnel from other states. During emergencies, these state employees - police, firefighters, emergency medical technicians, urban search and rescue teams, and public health specialists - would serve with compensation under the command of the President as Commander in Chief. Emergency commandeering allows the national government to mount an effective response, one that draws upon the skills and experiences of state and local personnel, without the hindrance of multiple command structures or other forms of state and local resistance. The Article sets out in detail how emergency commandeering would operate. It also shows why emergency commandeering is authorized by the Constitution, consistent with federalism, and, compared to the alternative of sending the military into our streets, good also for democracy.
Keywords: emergencies, federalism, katrina, terrorism, natural disaster, commandeering, homeland security, FEMA, states, New Orleans
Suggested Citation: Suggested Citation
Mazzone, Jason, The Commandeerer in Chief (February 2007). Brooklyn Law School, Legal Studies Paper No. 64. Available at SSRN: https://ssrn.com/abstract=955687 or http://dx.doi.org/10.2139/ssrn.955687