WASHINGTON, D.C. — When members of Congress approved the National Defense Authorization Act last October, most of them had no idea that they were fundamentally altering the balance of power between the federal and state governments that’s existed for more than 200 years. Buried within the $538 billion military spending bill  was a rider making it easier for the president to declare martial law and assume command of the National Guard, with or without a governor’s consent.
That provision, which was quietly slipped into the bill at the White House’s behest, effectively gave the president the authority to bypass the Posse Comitatus Act, a Reconstruction-era law that prevents the executive branch from using the military as a domestic police force. Posse Comitatus qualifies the Insurrection Act of 1807 , which allows a president to declare martial law and deploy troops on American soil in the event of a rebellion or civil uprising.
The initiative, advanced by the Bush administration, was precipitated by Hurricane Katrina . Specifically, it arose from a power struggle between President Bush and Louisiana Governor Kathleen Blanco — over the National Guard — that likely delayed some rescue efforts in the wake of the storm. As a result, the president sought legal means to federalize Guard troops and/or deploy regular military soldiers in the event of a major emergency, such as a terrorist attack, flu pandemic or any “other condition” that may arise. The rider didn’t define what constitutes an “other condition,” or how a constitutional crisis would be averted if a governor refused to relinquish command of his or her own National Guard soldiers.
Senator Patrick Leahy , who chairs the Senate Judiciary Committee and also heads up the National Guard caucus, was the first one to raise opposition last summer to this attempt at expanding the power of the “unitary executive.” “This was so unprecedented,” Leahy said in a phone interview last week. “It was slipped into the bill because we had a rubber-stamp Congress for the Republican leadership and they wouldn’t say no to anything . . . It’s totally unfair to the National Guard that the president would walk in and try to use them as law enforcement. That’s not what they’re trained for.”
Although the mainstream media was mostly silent on the historic tweak, the response by both military and civilian officials was strongly critical. The National Sheriffs’ Association  and the Adjutants General Association , which represents the top commanders from each state’s National Guard, both opposed the rider; the National Guard Association  described it as setting “a dangerous precedent.” In a rare display of bipartisan consensus, all 51 members of the National Governors Association , including Governor Jim Douglas , signed an August 6, 2006, letter condemning the rider as an attempt to “usurp governors’ authority” over their own National Guard troops.
Yet despite such criticisms, the rider was left in the bill when Bush signed it into law on October 17, 2006. So in February, Senators Leahy and Christopher “Kit” Bond  (R-Missouri) introduced S.513, which in Leahy’s words “replaces every word, comma and period” from the original Insurrection Act. Last week, Leahy told Seven Days that a “major victory is in the offing:” Virtually all the language from S.513 has been incorporated into the new defense authorization bill that’s expected to be voted on by the full Senate in coming weeks.
That can’t happen too soon — even for the Douglas administration, which is ordinarily averse to criticizing the president. Calling the rider’s passage “an unnecessary power grab” by the federal government, Press Secretary Jason Gibbs noted, “Philosophically, it’s completely inconsistent with the point of view of the Republican Party, which is that the states have rights. It’s one of the great inconsistencies of this administration.”
Likewise, the Vermont National Guard ’s senior-most military officer, Adjutant General Michael Dubie, who usually doesn’t comment on policy issues, expressed his strong disapproval for “changing a construct that’s worked well for a couple hundred years.”
“I’m a states’ rights advocate,” Dubie said. “I believe that the way our system is set up, the governor is clearly in a better position to respond in an emergency to the needs of the state of Vermont than some federal agency.”
Dubie likened last year’s legislation to a situation that arose in 1986 when then-Governor Madeleine Kunin tried to prevent Vermont’s Army National Guard from being sent to Honduras. At the time, Kunin and four other states’ governors were opposed  to then-President Ronald Reagan’s attempt to intimidate the Sandinista government in neighboring Nicaragua. The courts ultimately settled the issue by upholding the president’s right to trump the governors’ authority over their own Guard troops.
While Dubie acknowledges that last year’s defense authorization act “lowered the bar” for when a president can take command of the Vermont National Guard, he emphasized that in an emergency situation, his first loyalty is to the governor.
“If there’s anything good about what happened with last year’s legislation, it’s that it created this awareness of the dual status of the National Guard that most people don’t realize is out there,” he added. “It’s a good opportunity to talk about who decides its role and mission.”