I've mentioned before that we live in crazy times, that so many things which seemed politically impossible now seem at least possible, and that those of us who take freedom seriously have to worry about stuff we'd have laughed off a decade ago.
I'm reminded of this by two things which at first may seem unrelated: an incident involving an attempt to incite the arrest of Michael Schiavo and an amendment to the (former) Insurrections Act, which has now morphed into an act regarding “Enforcement of the Laws to Restore Public Order,” an amendment which has sparked a remarkable amount of blog angst about possible martial law.
First, there's this I-wish-it-were-incredible story from Michael Schiavo, the husband of Terry Schiavo, who has been dedicating himself to going around the country supporting opponents of the legislators who tried to federalize his wife's hospitalization.
My unreal night in Colorado: Back in mid-July I travelled to Colorado and delivered a letter to Congresswoman Musgrave's office. asking her why she felt compelled to interfere in my family's personal affairs – questioning, in fact trying to refute the medical facts of my wife's case on the floor of Congress.
Not surprisingly, Marilyn Musgrave never responded to my letter.
So on Tuesday I joined about 1,000 citizens and members of the local and regional media in the Windsor High School Auditorium to hear the debate and try to get an answer to my question from Congresswoman Musgrave.
About twenty minutes before the debate started and after speaking to several reporters about how Musgrave had voted to transform her values into our laws, I took a seat in the front row. As it turned out, I was seated next to the timekeeper who held up yellow and red cards to signal time to the candidates.
But just minutes after taking my seat, I noticed a flurry of activity around my seat including about four uniformed police officers who were – I would learn later – called in by Musgrave staffers and asked to remove me from the building.
At this point, I had made no speeches, I had no signs, had made no attempt to disrupt or cause any commotion. I only came into the auditorium, spoke to a dozen or so reporters and took a seat.
To their credit, the police refused the Musgrave campaign's appeal to have me removed.
There's more to come, but I still can't get over even that part. A sitting member of Congress asked the police to remove me – a taxpaying citizen – from a public debate. Obviously, I misunderstand the concept of a political debate. I thought a debate was a place to share ideas, answer questions, defend your record and tell citizens what you've done and what you will do. Marilyn Musgrave believes, I have to gather, that debates are places to have the police remove people who don't agree with you.
(And why shouldn't Congresswoman Musgrave think that you can have your critics arrested? After all, it works for George Bush and Dick Cheney.)
Then there's this second thing, an amendment to 10 USC § 333, that significantly expands the circumstances in which the President can deploy the full armed forces — and federalize the state National Guard even over a local governor's objections. The old version of the Insurrection Act, along with the Posse Comitatus Act, sought to narrow Presidential power and localize the decision to use force. [UPDATE: For a tour de force introduction to the legal regime as it existed prior to this most recent amendment, see Steve Vladeck's amazing student note, Emergency Power and the Militia Acts, 114 YALE L.J. 149 (2004).]
Some of the circumstances the law addresses are pretty clear — “a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident,” — even if not necessarily keeping with our traditions of civilian law enforcement and federalism.
But some are pretty vague: The President can call out the full military might of the US (and remove the governor's control of local forces), whenever he thinks that “any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy” in a state has resulted in situation that,
(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
But here's the thing: the section quoted above, the vaguest and broadest part of this statute, the very part that has some folks worrying out loud about martial law, is pretty much the same as the old language, which allowed the President to call out the troops to,
suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—
(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
Laws like this are always troubling because there is no practical way to challenge their application. Unless it were willing to strike down the statute as a standardless delegation — a nearly moribund doctrine — it is very hard to see a court telling the President that, say, the chaos in New Orleans after the flood, or even the limited violence in Florida in 2000 when GOP operatives attacked the ballot counters, didn't rise to a level that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” The courts are going to label that a political question, or find some other excuse for the courts to duck the matter.
But while this sort of executive discretion is always a problem for democratic rule, as I hope I've shown by juxtaposing the old language and the new it's not a new problem, not at all.
You might wonder why people got all excited about this today, when similar language has been on the books for quite a long time. Some people might just dismiss it as hysteria, a sort of left-wing or libertarian-right-wing paranoia. I think it's subtler than that.
What's new is that so many more of us no longer have the gut-level feeling that we can rely on the people in charge not to abuse the system; this doubt has a large number of people starting at shadows. In one sense that doubt is a beautiful thing: it is part of a free people's antibodies against tyrants. We need to respect that feeling, even while being annoyed about the extra work vigilance imposes on us.
Finding the precisely appropriate dose of concern is a difficult calibration exercise. In that context it is important to understand that the case of Michael Schiavo has two lessons: on the one hand, part of the current ruling cabal mistook our government for a revolutionary junta. On the other hand, the local police had the good sense not to listen.
Emergency federal powers of the type set out in § 333 are scary in part because they threaten to displace the good sense and discretion of a few local cops with the necessarily more order-following tradition of the military officer on the scene. But in the main that's not a new problem, it's a very old one — one today that it is exacerbated by the attack on habeas corpus, and the administration's legal claims that it can jail any of us, any time, for as long as it wants — not to mention the administration's claim that it has the legal right to kill us.
In good times we just don't have to worry about that stuff. But these are crazy times, not good ones.
Full statutory text below the fold.
