Crazy Times (Martial Law Edition)

I've mentioned before that we live in crazy times, that so many things which seemed politically impossible now seem at least possible, and that those of us who take freedom seriously have to worry about stuff we'd have laughed off a decade ago.

I'm reminded of this by two things which at first may seem unrelated: an incident involving an attempt to incite the arrest of Michael Schiavo and an amendment to the (former) Insurrections Act, which has now morphed into an act regarding “Enforcement of the Laws to Restore Public Order,” an amendment which has sparked a remarkable amount of blog angst about possible martial law.

First, there's this I-wish-it-were-incredible story from Michael Schiavo, the husband of Terry Schiavo, who has been dedicating himself to going around the country supporting opponents of the legislators who tried to federalize his wife's hospitalization.

My unreal night in Colorado: Back in mid-July I travelled to Colorado and delivered a letter to Congresswoman Musgrave's office. asking her why she felt compelled to interfere in my family's personal affairs – questioning, in fact trying to refute the medical facts of my wife's case on the floor of Congress.

Not surprisingly, Marilyn Musgrave never responded to my letter.

So on Tuesday I joined about 1,000 citizens and members of the local and regional media in the Windsor High School Auditorium to hear the debate and try to get an answer to my question from Congresswoman Musgrave.

About twenty minutes before the debate started and after speaking to several reporters about how Musgrave had voted to transform her values into our laws, I took a seat in the front row. As it turned out, I was seated next to the timekeeper who held up yellow and red cards to signal time to the candidates.

But just minutes after taking my seat, I noticed a flurry of activity around my seat including about four uniformed police officers who were – I would learn later – called in by Musgrave staffers and asked to remove me from the building.

At this point, I had made no speeches, I had no signs, had made no attempt to disrupt or cause any commotion. I only came into the auditorium, spoke to a dozen or so reporters and took a seat.

To their credit, the police refused the Musgrave campaign's appeal to have me removed.

There's more to come, but I still can't get over even that part. A sitting member of Congress asked the police to remove me – a taxpaying citizen – from a public debate. Obviously, I misunderstand the concept of a political debate. I thought a debate was a place to share ideas, answer questions, defend your record and tell citizens what you've done and what you will do. Marilyn Musgrave believes, I have to gather, that debates are places to have the police remove people who don't agree with you.

(And why shouldn't Congresswoman Musgrave think that you can have your critics arrested? After all, it works for George Bush and Dick Cheney.)

Then there's this second thing, an amendment to 10 USC § 333, that significantly expands the circumstances in which the President can deploy the full armed forces — and federalize the state National Guard even over a local governor's objections. The old version of the Insurrection Act, along with the Posse Comitatus Act, sought to narrow Presidential power and localize the decision to use force. [UPDATE: For a tour de force introduction to the legal regime as it existed prior to this most recent amendment, see Steve Vladeck's amazing student note, Emergency Power and the Militia Acts, 114 YALE L.J. 149 (2004).]

Some of the circumstances the law addresses are pretty clear — “a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident,” — even if not necessarily keeping with our traditions of civilian law enforcement and federalism.

But some are pretty vague: The President can call out the full military might of the US (and remove the governor's control of local forces), whenever he thinks that “any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy” in a state has resulted in situation that,

(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

But here's the thing: the section quoted above, the vaguest and broadest part of this statute, the very part that has some folks worrying out loud about martial law, is pretty much the same as the old language, which allowed the President to call out the troops to,

suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—
(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

Laws like this are always troubling because there is no practical way to challenge their application. Unless it were willing to strike down the statute as a standardless delegation — a nearly moribund doctrine — it is very hard to see a court telling the President that, say, the chaos in New Orleans after the flood, or even the limited violence in Florida in 2000 when GOP operatives attacked the ballot counters, didn't rise to a level that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” The courts are going to label that a political question, or find some other excuse for the courts to duck the matter.

But while this sort of executive discretion is always a problem for democratic rule, as I hope I've shown by juxtaposing the old language and the new it's not a new problem, not at all.

You might wonder why people got all excited about this today, when similar language has been on the books for quite a long time. Some people might just dismiss it as hysteria, a sort of left-wing or libertarian-right-wing paranoia. I think it's subtler than that.

What's new is that so many more of us no longer have the gut-level feeling that we can rely on the people in charge not to abuse the system; this doubt has a large number of people starting at shadows. In one sense that doubt is a beautiful thing: it is part of a free people's antibodies against tyrants. We need to respect that feeling, even while being annoyed about the extra work vigilance imposes on us.

Finding the precisely appropriate dose of concern is a difficult calibration exercise. In that context it is important to understand that the case of Michael Schiavo has two lessons: on the one hand, part of the current ruling cabal mistook our government for a revolutionary junta. On the other hand, the local police had the good sense not to listen.

Emergency federal powers of the type set out in § 333 are scary in part because they threaten to displace the good sense and discretion of a few local cops with the necessarily more order-following tradition of the military officer on the scene. But in the main that's not a new problem, it's a very old one — one today that it is exacerbated by the attack on habeas corpus, and the administration's legal claims that it can jail any of us, any time, for as long as it wants — not to mention the administration's claim that it has the legal right to kill us.

In good times we just don't have to worry about that stuff. But these are crazy times, not good ones.

Full statutory text below the fold.

SEC. 1076. USE OF THE ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.
(a) USE OF THE ARMED FORCES AUTHORIZED.
(1) IN GENERAL.—Section 333 of title 10, United States
Code, is amended to read as follows:
‘‘§ 333. Major public emergencies; interference with State and
Federal law
‘‘(a) USE OF ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.
(1) The President may employ the armed forces, including the
National Guard in Federal service, to—
‘‘(A) restore public order and enforce the laws of the United
States when, as a result of a natural disaster, epidemic, or
other serious public health emergency, terrorist attack or
incident, or other condition in any State or possession of the
United States, the President determines that—
‘‘(i) domestic violence has occurred to such an extent
that the constituted authorities of the State or possession
are incapable of maintaining public order; and
‘‘(ii) such violence results in a condition described in
paragraph (2); or
‘‘(B) suppress, in a State, any insurrection, domestic
violence, unlawful combination, or conspiracy if such insurrection,
violation, combination, or conspiracy results in a condition
described in paragraph (2).
‘‘(2) A condition described in this paragraph is a condition
that—
‘‘(A) so hinders the execution of the laws of a State or
possession, as applicable, and of the United States within that
State or possession, that any part or class of its people is
deprived of a right, privilege, immunity, or protection named
in the Constitution and secured by law, and the constituted
authorities of that State or possession are unable, fail, or refuse
to protect that right, privilege, or immunity, or to give that
protection; or
‘‘(B) opposes or obstructs the execution of the laws of the
United States or impedes the course of justice under those
laws.
‘‘(3) In any situation covered by paragraph (1)(B), the State
shall be considered to have denied the equal protection of the
laws secured by the Constitution.
‘‘(b) NOTICE TO CONGRESS.—The President shall notify Congress
of the determination to exercise the authority in subsection (a)(1)(A)
as soon as practicable after the determination and every 14 days
thereafter during the duration of the exercise of that authority.’’.
(2) PROCLAMATION TO DISPERSE.—Section 334 of such title
is amended by inserting ‘‘or those obstructing the enforcement
of the laws’’ after ‘‘insurgents’’.
(3) HEADING AMENDMENT.—The heading of chapter 15 of
such title is amended to read as follows:
‘‘CHAPTER 15—ENFORCEMENT OF THE LAWS TO
RESTORE PUBLIC ORDER’’.
(4) CLERICAL AMENDMENTS.—(A) The tables of chapters
at the beginning of subtitle A of title 10, United States Code,
and at the beginning of part I of such subtitle, are each
amended by striking the item relating to chapter 15 and
inserting the following new item:

(B) The table of sections at the beginning of chapter 15
of such title is amended by striking the item relating to sections
333 and inserting the following new item:
‘‘333. Major public emergencies; interference with State and Federal law.’’.
(b) PROVISION OF SUPPLIES, SERVICES, AND EQUIPMENT.
(1) IN GENERAL.—Chapter 152 of such title is amended
by adding at the end the following new section:
‘‘§ 2567. Supplies, services, and equipment: provision in major
public emergencies
‘‘(a) PROVISION AUTHORIZED.—In any situation in which the
President determines to exercise the authority in section
333(a)(1)(A) of this title, the President may direct the Secretary
of Defense to provide supplies, services, and equipment to persons
affected by the situation.
‘‘(b) COVERED SUPPLIES, SERVICES, AND EQUIPMENT.—The supplies,
services, and equipment provided under this section may
include food, water, utilities, bedding, transportation, tentage,
search and rescue, medical care, minor repairs, the removal of
debris, and other assistance necessary for the immediate preservation
of life and property.
‘‘ (c) LIMITATIONS.—(1) Supplies, services, and equipment may
be provided under this section—
‘‘(A) only to the extent that the constituted authorities
of the State or possession concerned are unable to provide
such supplies, services, and equipment, as the case may be;
and
‘‘(B) only until such authorities, or other departments or
agencies of the United States charged with the provision of
such supplies, services, and equipment, are able to provide
such supplies, services, and equipment.
‘‘(2) The Secretary may provide supplies, services, and equipment
under this section only to the extent that the Secretary
determines that doing so will not interfere with military preparedness
or ongoing military operations or functions.
‘‘(d) INAPPLICABILITY OF CERTAIN AUTHORITIES.—The provision
of supplies, services, or equipment under this section shall not
be subject to the provisions of section 403© of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170b(c)).’’.
(2) CLERICAL AMENDMENT.—The table of sections at the
beginning of such chapter is amended by adding at the end
the following new item:
‘‘2567. Supplies, services, and equipment: provision in major public emergencies’’.
(c) CONFORMING AMENDMENT.—Section 12304(c)(1) of such title
is amended by striking ‘‘No unit’’ and all that follows through
‘‘subsection (b),’’ and inserting ‘‘Except to perform any of the functions
authorized by chapter 15 or section 12406 of this title or
by subsection (b), no unit or member of a reserve component may
be ordered to active duty under this section’’.


Here is the old version of the statute, part of the Insurrections Act,

§ 333. Interference with State and Federal law

The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—

(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

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7 Responses to Crazy Times (Martial Law Edition)

  1. Brautigan says:

    What’s new is that so many more of us no longer have the gut-level feeling that we can rely on the people in charge not to abuse the system

    A casualty of Bush v. Gore.

  2. Gus says:

    Professor Froomkin, your comment, “this doubt has a large number of people starting at shadows.” spoke to me. I quotted you in the Comments of this Riptide post:

    “Three agencies against a Star Destroyer?”
    http://www.miaminewtimes.com/blogs/?p=110

  3. What is most remarkable about this post is: “To their credit, the police refused the Musgrave campaign’s appeal to have me removed.” I’m stunned, because most police will do whatever the most authoritative party in the room asks them to because that’s a safe practice to follow. However, because it was a request from a legislator, perhaps the usual executive fiat didn’t apply?

    Free speech, even the passive presence of the potential of free speech, is now considered a violent act. And, with this administration, it is a violent act because free speech undermines their ability to govern without oversight.

  4. rescueblues says:

    You have no idea what martial law (or good times versus crazy times) is if you are comparing this to an act of martial law.
    Dec. 13, 1981 Warsaw Poland, that’s martial law!

  5. What a fine post. Bravo.

  6. Michael says:

    The claim — for better or worse — is only that this statute would allow the President to declare de facto martial law by decree, not that this act itself delcares martial law. I think that the claim is broadly correct in one sense — the President could direct the army to replace the civil authority, and issue emergency rules and perhaps even penalties — but perhaps not in another, in that it’s a nice question whether the underlying civilian rules could be suspended or whether they would remain in effect no matter what, waiting for courts to enforce them.

  7. Thomas says:

    You say, “What’s new is that so many more of us no longer have the gut-level feeling that we can rely on the people in charge not to abuse the system…”

    But the fact that the angry left is now worried rather than the extremist right doesn’t in itself tell us that there are “so many more of us” who are irrationally excited by fears of the government. The militia movement of a dozen years ago has largely faded away, and in its place we see paranoia on the left. The faces are new, but it isn’t obvious to me that the phenomenon is anymore serious or widespread than a dozen years ago. I suppose soon enough there will be worries about black helicopters; this time the rumors will spread on the internet and by word of mouth on college campuses.

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