Katrina, Federalism, and Military Law Enforcement: A New Exception to the Posse Comitatus Act

In the days following Hurricane Katrina, as lawlessness and violence spread throughout New Orleans, the White House considered invoking the Insurrection Act so that members of the U.S. military could legally perform law enforcement functions inside the flooded city. This Note contends that the White House’s decision not to invoke the Act was substantially driven by federalism concerns-in particular, concerns about intruding on Louisiana’s sovereignty. But, this Note further contends, in focusing so heavily on these state sovereignty concerns, the White House largely ignored the other side of the ‘federalism coin “-namely, enabling the federal government to act where national action is desirable. To address future situations where the president may desire to deploy troops domestically for law enforcement functions but may be hesitant to do so for fear of intruding on a state’s sovereignty, this Note urges Congress to create a procedural mechanism whereby the president may go to a specially-created judicial body and seek a “warrant” to deploy members of the military for domestic law enforcement. This procedural mechanism would not be entirely new-indeed, the Second Congress of the United States imposed a similar ‘judicial certification” requirement on the president’s ability to deploy the military domestically for law enforcement functions. The procedure suggested here, however, would supplement and not replace the president’s current Insurrection Act powers.