Early in the history of the Republic, the delegates to the Constitutional Convention and the members of the subsequent Congresses understood that the President required power to execute the laws of the land. Under authority of the Militia Clause, Congress enacted the Militia Act of 1792 and the subsequent Insurrection Act of 1807 to provide the President with authority to call forth the militia of the states to execute the laws and suppress insurrections. As recent as 1992, President George W. Bush relied upon the Insurrection Act to federalize much of the California National Guard and employ an additional force of approximately 4,000 active Army and Marine troops to suppress the Los Angeles Riots, which had flared up as the result of the controversial acquittal of white police officers who used force against an African American suspect. In addition to the Insurrection Act, Congress enacted the 1974 Disaster Relief Act and subsequent 1988 Robert T. Stafford Disaster Relief and Emergency Assistance Act to provide the President with authority to act in response to natural or manmade disasters within the United States. On numerous occasions, the Stafford Act has been the basis for federal assistance, including military assistance, to affected areas during hurricanes, floods, forest fires, and other incidents. In the majority of cases where the President has invoked the Insurrection Act or the Stafford Act, he has done so at the request of a governor. In most cases, the President's use of federal troops, including federalized National Guard troops, has been part of a tiered response of local, state, and federal responders. However, after Hurricane Katrina devastated the Gulf Coast in 2005, the response at all levels drew criticism from the media and the public at large. In an attempt to improve disaster response efforts, Congress amended the Insurrection Act by broadening its applicability beyond instances of well-defined insurrection, rebellion, unlawful combination, and conspiracy, to include natural disasters. The amendment added that the President could act without a governor's request when he determined that it was beyond a state's capability to enforce the laws and maintain public order. The amendment was enacted in 2006 as the Enforcement of the Laws to Restore Public Order. This statute immediately stirred controversy as it arguably represented an unwarranted expansion of Presidential power. Additionally, while the 2006 statute attempted to address the kind of lawlessness seen in New Orleans immediately following Hurricane Katrina, the Enforcement of the Laws to Restore Public Order arguably offered no improvement over the Insurrection Act in instances of lawlessness or the Stafford Act in instances of disaster. Without ever having been invoked, and in the face of strong opposition, the Enforcement of the Laws to Restore Public Order was repealed on January 28, 2008 and the previous Insurrection Act was restored. This monograph reviews the Enforcement of the Laws to Restore Public Order and recommends that future laws and policies to improve disaster response across the whole-of-government and the private sector should be consistent with the principles in the 2008 National Response Framework, which advocates tiered response rather than greater federal response in most instances. The rare instances of catastrophic disaster that might require the President to shortcut tiered response and assume federal control at the outset of the situation should be clearly defined in law.

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