BerkeleyLaw Library

"This Article analyzes how the government's blame of the Posse Comitatus Act (PCA) for its late response to the Hurricane Katrina disaster was misplaced. Part I starts with a brief history of the military's role in domestic law enforcement and chronicles how, throughout history, standing armies have crept into civilian law enforcement. It discusses how for centuries, governments have treated their standing armies as necessary evils - depending on the military for national defense while at the same time fearing its power to oppress if improperly unleashed. In fact, the encroachment of federal troops on the voting rights of the Reconstruction South was the impetus for the passage of the Posse Comitatus Act (PCA) in 1878.

"Part II teases out the convoluted process of analyzing military action under the PCA. It lays out how courts interpret the statute as well as the constitutional, Congressional and common law exceptions to the PCA. Part III applies the PCA to the situation in New Orleans, concluding that the PCA was not implicated because the military's role was to provide food, water, medical care and transportation out of the city and not to enforce the law. This section also details the various sources of authority that would have permitted the use of the military in a law enforcement capacity in New Orleans immediately after Katrina.

"Lastly, the Conclusion discusses what the PCA means today and whether we still have a need for such a law. The author concludes that we do need a PCA-like law, but we need one that is more potent. We have traversed through a cycle of authority that gradually progresses from absolute civilian control of the military to virtual control of the military and then back again. We are on the upswing of this cycle, and we need a PCA with teeth in order to protect us from repeating history and from ending this chapter of increasing military authority in disaster."—Abstract.

"Public health law has been a quintessentially public law field, centered around a system of administrative agencies. In some respects, the field is moving even closer to the core of governmental functions. Since September 11, the 2001 anthrax attacks and Hurricane Katrina, the conceptual framework of emergency preparedness and response has subsumed ever larger segments of public health policymaking. Emergency planning has become an important discourse of governance, one which reveals a great deal about the operations of state power.

"In this article, I identify three approaches to governance embedded in today's public health law and policy. The first and most traditional approach to governance is that of dominant state authority. What is notable is how this approach is being strengthened by a trend toward greater centralization and hierarchy in infectious disease control, pushing public health into a tighter command and control structure. I describe how this framing process has the effect of melding population health concerns and the security state, as well as insinuating a discourse of emergency response into non-emergency policy-making.

"The second governance model in the public health field is the public-private administrative model. Although public-private models for administrative governance are relatively new to public health compared to many other fields, calls for partnerships with the private sector for the purpose of achieving population health goals are growing. Increasingly, private sector entities are implicated in the state's matrix of collaborative public health institutions.

"The third governance construct is based on the insight from governmentality theory that the state already permeates the private sector even without formal authority; power flows back and forth between public and private entities through a multiplicity of channels and technologies. New federal proposals for 'modern quarantine' provide an example. 'Modern quarantine' policies would depend on the public's instinct to voluntarily sequester themselves in a pandemic, thus utilizing indirect and less coercive methods to control the spread of infectious disease. However, this proposal fails to engage with the full dimensions of the public sector role that would be necessary to enable people to remain at home for three months or more. It cannot succeed without mandates and incentives emanating from the state, a reality which official policy documents have elided."

"From this analysis we can learn a great deal about both current directions in public health policy and about the utility and limitations of new governance theory. The three governance trends taken together exemplify a paradox fundamental to contemporary political debates: how the same apparatus can be intensifying as a security state while at the same time deploying new governance and privatization initiatives. The concept of modern quarantine demonstrates that serious complications lurk beneath the surface when policymakers engage in shallow invocations of new regulatory rhetoric."—Abstract.

"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." —Abstract.