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Udall Wins Approval of Measure to Return National Guard Powers to Governors During Emergencies and Disasters

Press Release

Location: Washington, DC

Legislation restores old rules for invoking Insurrection Act

U.S. Rep. Mark Udall (D-Colo.) has won approval of a measure that would repeal a 2006 law that makes it easier for the president to federalize the National Guard for domestic law enforcement purposes during emergencies. The measure, which was added to the National Defense Authorization Act of 2008 during debate in the House Armed Services Committee, would restore this power to the Governors who have historically been the commanders-in-chief of the National Guard in their respective states.

"The recent tornado in Kansas has once again highlighted the important role that the National Guard plays in responding to emergencies and natural disasters. The current law is a dangerous consolidation of power in the presidency. It allows this president and future presidents to more easily take control of the National Guard and use it for law enforcement at home. My amendment restores this control of the Guard to the governors who, with their local law enforcement and emergency response officials, know their communities and are best able to respond to catastrophic events," said Udall.

At issue is the Insurrection Act, a 200-year old law that governs when the president can declare martial law. The president can invoke the Act during violent situations that deprive citizens of their rights, and the military, including the National Guard, can carry out law enforcement functions without the consent of a governor. The law was written in a way that discouraged invoking it except in a clear case of insurrection, and it encouraged presidents to consult first with governors before they might decide to wrest control of the Guard from them. The Act has been invoked only three times in the last fifty years.

However, in 2006 Congress approved a change in the law in Section 1076 of the National Defense Authorization Act of 2007 that allows the president to invoke the Act where public order breaks down as a result of a natural disaster, epidemic, terrorist attack or "other conditions." This change in law shifted the control of the Guard in these instances from the governors to the federal government.

All of the governors, the National Guard Association, and the Adjutants General of the United States oppose the new law and support Udall's measure to repeal it.

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