With the president's suggestion that the military should play a bigger role in future major emergencies, he has set in motion a cascade of policy shifts that, if reaching fruition, may shake the Pentagon to its foundation and recast the lines both between the states and the federal government, and between civil and military domestic jurisdictions. It might not be too portentous to say that many serious people may see such a policy shift as having constitutional implications.
On its face, the rightness of the idea seems obvious. In extreme emergencies, state and local governments are not up to the task. Only the federal government and, specifically, the military have the resources, personnel and logistic capacity to act effectively.
In Katrina's aftermath, the president's critics (and many of his friends) blamed him for not stepping in and taking command soon enough. But if ever something were easier said than done -- such prompt presidential pre-emption would be it.
It is true that the Insurrection Act gives the president the power to overrule governors and take military and economic command under certain situations. But overriding an unwilling governor hasn't been done in a half a century. And organizing the resources to make such action effective will challenge historic principles of governance.
At the heart of such a reorganization lies the dual missions and dual controls of the National Guard. Currently, the state guards are commanded by the governors unless they are activated for military duty abroad or federalized for domestic activity.
But if the several state guards are to be the president's primary instrument for effective preemptive federal action, then their doctrine, training and resource management would need to be within the president's purview even on a regular basis -- in order to be effective when needed. The president cannot be expected to be responsible for their performance if he is not responsible for their training and equipping. Governors will resist giving up such day-to-day control.
At the same time that the Guards are more effectively trained for such responsibilities (including duty in response to WMD terrorists attacks), their ability to be simultaneously indoctrinated and trained to their war fighting duties abroad will tend to be degraded. (e.g. Our soldiers patrol rifles up in Fallujah, but rifles down in New Orleans.)
The regular active military, rightly or wrongly, has long quietly believed that the Guards are not up to the active military's standards. However, the Guard's able service and sacrifice in combat over the generations is a source of justified pride -- and the Guard, as an institution, would fiercely resist the end or reduction of that proud heritage.
If the Guard did become less likely to serve abroad, the active military would be too small (without the Guard supplement) to carry out its missions abroad. Thus, such a realignment would create pressure to increase the size of the active forces.
The logic of a more robust and interventionist federal military role in domestic emergencies may tend to evolve into the Guard becoming something like a domestic army -- perhaps commanded (when federalized) by the recently created, currently soldierless, Northern Command -- whose somewhat ambiguous mission is to protect the country domestically from and during terrorist attacks.
When in such a federalized status, what would be their relationship to civilian federal agencies, state and local law enforcement and first responders? Would, for example, the Department of Health and Human Services (HHS) report in the chain of command to the federalized Guard if the distribution of vaccines were in dispute between the Guard general and the secretary of HHS? Or would the president have to personally intervene to resolve such disputes between legal equals at a moment when minutes and hours may make a strategic difference?
At the state level, would local police, state troopers, firemen, ambulance drivers, etc. be federalized along with the Guard? Would governors and mayors want that? And if not, would we run the risk of disputes between the two forces (such as whether to force at gunpoint homeowners to leave their homes, as happened in New Orleans -- where the Army refused to carry out the mayor's orders to force evacuation).
Meanwhile, the domestic implications of a national guard force trained and indoctrinated to domestic interventions at the discretion of a more interventionist-minded president is discordant with American traditions that go back to our revolutionary days. Fear of a standing army was memorialized in the third amendment, which bars the quartering of troops in private homes even during war unless prescribed by law.
The Posse Comitatus Act of 1878 debarred the military, with a few exceptions, from acting as a domestic law enforcement agency. The American military establishment has long been committed to both the letter and the spirit of that act -- and has resisted any domestic law enforcement assignments.
Notwithstanding these and other concerns, the mood on Capitol Hill this week, if my Hill sources are accurate, is that for different reasons, the Senate may be prepared to legislatively authorize changes.
While legislative details have not been formalized yet, Republicans may be inclined to support the president's initiative, while Democrats seem to think that somehow such changes will compromise troop strength in Iraq and lead to an earlier withdrawal. Personally, I rather doubt the president intends to lower such troop levels until we have success.
But such is the odd mood in Washington at the moment, that both Republicans and Democrats in the Senate, for different reasons, may support the president's initiative.
However the Republican House may, in this instance, play the Senate's traditional role of the saucer that lets the legislative brew cool before being voted on.