Jeffrey Haas wrote:
Ok, this is a question I'd love an answer to.  This question is not to place blame on the president.  I'm not asking this question to stir up a debate about the presidents actions.  If you know the answer to this question, let me know and, if possible, supply a source that can be verified:

Absent of the request of the governors of Louisiana and Mississippi, could the president have given an executive order and legally gone into either of those states with FEMA and troops without permission?

As long as it was not a constitutional over reach.  That question/answer I can't even begin to explain.

Jeffrey Haas wrote:
I got into a debate with a colleague of mine.  I claim that with Executive Order the president could have entered into either state without permission.  She claims there's a law forbidding just that.  I just need to know who's right...

I'm not sure.  I know the political fall-out though...  No matter what he does he will be assigned a measure of blame and praise.  Usually deserving varying degrees of each.  Damned if you do, damned if you don't.

Jeffrey Haas wrote:
I got into a debate with a colleague of mine.  I claim that with Executive Order the president could have entered into either state without permission.  She claims there's a law forbidding just that.  I just need to know who's right...

You may be thinking of "Posse Comitatus" which prohibits the federal government from using the US military in many domestic situations - one of the reasons the National Guard is called (they're state based - as in the Texas National Guard).

Generally, in a crisis like "Katrina", the National Guard would be called on to provide law enforcement (much like they were intended to do at Kent State in the 1960s) as well as other functions. This law enforcement function would be an illegal domestic use of the US Army or Marines based on the "Posse Comitatus" law of 1876.
*****************

20 Stat. L., 145

June 18, 1878

CHAP. 263 - An act making appropriations for the support of the Army for the fiscal year ending June thirtieth, eighteen hundred and seventy-nine, and for other purposes.

SEC. 15. From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section And any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment.

***********

As an aside, when "Andrew" hit Florida, Bush Sr. refused to send help based on a phone request from the governor of Florida .... insisting that the request for aid be in writing. Not sure what that was about bt I found it interesting.

BlackStarPhoto wrote:
Not sure about FEMA.  But use of the Military for law enforcement is not legal, for support or just to provide assistance to the people is another issue.

See US Code:
Section 1385. Use of Army and Air Force as posse comitatus

      Whoever, except in cases and under circumstances expressly
    authorized by the Constitution or Act of Congress, willfully uses
    any part of the Army or the Air Force as a posse comitatus or
    otherwise to execute the laws shall be fined under this title or
    imprisoned not more than two years, or both.

First, thank you for this post with documentation, but here's my question:

"...except in cases and under circumstances expressly authorized by the Constitution or Act of Congress..."

I'm almost positive that the president, using his power of Executive Order, can bypass the Congress here.  I read this on a website (can't remember the URL):

"Presidents have used the Executive Order in times of emergencies to override the Constitution of the United States and the Congress. "

I'm still confused...

Joe Kozlowski wrote:
...except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress;

But isn't an Executive Order by the president carry the same weight (if not more) as an act of Congress?

Joe Kozlowski wrote:
Generally, in a crisis like "Katrina", the National Guard would be called on to provide law enforcement (much like they were intended to do at Kent State in the 1960s) as well as other functions. This law enforcement function would be an illegal domestic use of the US Army or Marines based on the "Posse Comitatus" law of 1876.

Ok, let's forget the use of the Army or Marines.  Could President Bush called up the National Guard from other states and/or FEMA and gone into Louisiana and Mississippi without the permission of the governors of those states, simply by envoking an Executive Order?

The Art of CIP wrote:
I want to give you the information sooooo bad....  But as an American you need to actually read a copy of the Constitution for yourself and go from there...  Good luck in your quest....

I've read the references to executive power in the constitution, and while it's clear that the president can override congress (at least in the short term), the question still stands - Can his Executive Order overstep the authority provided by the governor of any given state?  And the question isn't "Should he have?"  The question is "Could he have?"

Jeffrey Haas wrote:
But isn't an Executive Order by the president carry the same weight (if not more) as an act of Congress?

It would appear so sometimes ... but if that were the case the first living ego to hit the office would turn this into a dictatorship in about two and a half seconds. By executive order he could disolve Congress, proclaim martial law (remember, Commander in Chief of the Armed Forces?) and go on to do what ever he damn well wanted to do. Fortunately, we have a division of labor in government wherein

The legislature is responsible for making laws
The exceutive branch is responsible for enforcing laws enacted by the legislature
and the jusdiciary is responsible for interpreting them when there's a question

We get into trouble when one or another of the branches forgets where it's area of responsibility leaves off and another branch's begins.

According to Wikipedia:

Presidents of the United States have issued executive orders since 1789. There is no United States Constitution provision or statute that explicitly permits this, aside from the vague grant of "executive power" given in Article II, Section 1 of the Constitution and the statement "take Care that the Laws be faithfully executed" in Article II, Section 3.

Executive orders do not have legal force by themselves. Most are simply orders issued by the President to United States to executive officers to help direct their operation, the result of failing to comply being removal from office. Some orders do have the force of law when made in pursuance of certain Acts of Congress due to those acts giving the President discretionary powers.

Jeffrey Haas wrote:
I've read the references to executive power in the constitution, and while it's clear that the president can override congress (at least in the short term), the question still stands - Can his Executive Order overstep the authority provided by the governor of any given state?  And the question isn't "Should he have?"  The question is "Could he have?"

To answer your question again - Yes...  Actaully that's one of the first things you learned back in college - political science 100...  But as a freshman - I was too busy studiynig other things than politics..  ...Should he have?  That's a whole other ball of wax....

National Guard units can be mobilized at any time by presidential order to supplement regular armed forces, and upon declaration of a state of emergency by the governor of the state in which they serve. Unlike Army Reserve members, National Guard members cannot be mobilized individually (except through voluntary transfers), but only as part of their respective units.

I think that goes quite a way toward answering your question.

The Art of CIP wrote:
To answer your question again - Yes...  A

Actually, based on my read, the answer is "no".

Joe Kozlowski wrote:

Actually, based on my read, the answer is "no".

Like I always say... Don't take my word for it...  I'm pretty sure where you live there's a college..  And there are lawyers....   I got my information form lawyers and Professors...  But the law is open to interpretation....  Just pick up a phone - or better yet cruise to a college or university...  I assure you - an hour of your time will be worth it....

Jeffrey Haas wrote:

Ok, let's forget the use of the Army or Marines.  Could President Bush called up the National Guard from other states and/or FEMA and gone into Louisiana and Mississippi without the permission of the governors of those states, simply by envoking an Executive Order?

Yes, however it would take the Vice President and 4 members of congress to back the "Executive Order" before it could be executed.

Unless the area is considered to be a sovereign nation.

Then an Executive Order needs the approval of the Senate and Congress and there must be an "imminent threat to the U.S." to do so.

Remember Waco?

Jeffrey Haas wrote:
Ok, this is a question I'd love an answer to.  This question is not to place blame on the president.  I'm not asking this question to stir up a debate about the presidents actions.  If you know the answer to this question, let me know and, if possible, supply a source that can be verified:

Absent of the request of the governors of Louisiana and Mississippi, could the president have given an executive order and legally gone into either of those states with FEMA and troops without permission?

Yes, they can as per the Insurrection Act which hasn't been invoked since the Civil Rights era & the earliest before that was the Civil War.

The Art of CIP wrote:

Like I always say... Don't take my word for it...  I'm pretty sure where you live there's a college..  And there are lawyers....   I got my information form lawyers and Professors...  But the law is open to interpretation....  Just pick up a phone - or better yet cruise to a college or university...  I assure you - an hour of your time will be worth it....

A "yes" answer would seriously undermine States Rights, don't ya think. If an Executive Order can abbrogate the rights of the governor of a state, then there's little left of that idea.

The Insurrection Act is the set of laws that govern the US President's ability to deploy troops within the United States to put down lawlessness, insurrection and rebellion. The laws are chiefly contained in 10USC331-335. The general tone is to limit Presidential power as much as possible relying on state and local governments for initial response in the event of insurrection. Coupled with the Posse Comitatus Act Presidential powers for law enforcement are limited and delayed.

Joe Kozlowski wrote:
A "yes" answer would seriously undermine States Rights, don't ya think. If an Executive Order can abbrogate the rights of the governor of a state, then there's little left of that idea.

That's exactly my point. 

Hypothetical situation: Manhattan is hit with by a cat 5 hurricane and it's flooding (just go with me here).  Unless action is taken immediately, the entire island will be destroyed.  The governor of New York tells the federal government that he does not want any outside forces brought in to control the situation, even though the governor is sitting on his hands, letting the island be devistated.  Are you telling me that the president has absolutely no recourse?

§ 331. Federal aid for State governments

Whenever there is an insurrections in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.

The relevant part to this discussion being "upon the request of its legislature or of its governor if the legislature cannot be convened" ...

Joe Kozlowski wrote:
"A "yes" answer would seriously undermine States Rights, don't ya think."

I didn't write the book - I just turn the pages....It would be nice though if what we thought actually mattered in terms of national government...

Jeffrey Haas wrote:

That's exactly my point. 

Hypothetical situation: Manhattan is hit with by a cat 5 hurricane and it's flooding (just go with me here).  Unless action is taken immediately, the entire island will be destroyed.  The governor of New York tells the federal government that he does not want any outside forces brought in to control the situation, even though the governor is sitting on his hands, letting the island be devistated.  Are you telling me that the president has absolutely no recourse?

I'm not telling you he doesn't have the power  ... only that the president doesn't have the powers under Posse Comitatus and the Insurrection Act. I'm researching this as I go and posting what I find because I'm as curious on this point as anyone here ... so far, I've seen nothing that allows the president to mobilize either the US Army, Marines or National Guard without an invitation from the effected state.

Personally, I would love holding Bush responsible for not mobilizing on that particular front, but it appears not to be in the cards ... or the legislation brought up in this forum.

Perhaps there is some other piece of legislation that provides for the powers in question .. but so far, nada.

Joe Kozlowski wrote:
I'm not telling you he doesn't have the power  ... only that the president doesn't have the powers under Posse Comitatus and the Insurrection Act. I'm researching this as I go and posting what I find because I'm as curious on this point as anyone here ... so far, I've seen nothing that allows the president to mobilize either the US Army, Marines or National Guard without an invitation from the effected state.

Please don't get the impression that I'm jumping on you.  I assure you that's not the case.  I'm just trying to get to the bottom of this...

Joe Kozlowski wrote:
Personally, I would love holding Bush responsible for not mobilizing on that particular front, but it appears not to be in the cards ... or the legislation brought up in this forum.

I know it'll be hard for anyone to believe, but placing blame was never the intention of this post.  I'm just trying to determine the legal options at the presidents disposal.

Joe Kozlowski wrote:
Again, according to Wikipedia:

Since anybody can add to Wikipedia's so-called encyclopedia, it's about as trustworthy as there forums.

JvR wrote:

Since anybody can add to Wikipedia's so-called encyclopedia, it's about as trustworthy as there forums.

You really should read up on it before you speak out on it. Discover Magazine did a fairly lengthy piece on Wikipedia with a fairly lengthy outline of why, with cross checks, multiple edits and editors as well as rules that would delete most of these forum posts, Wikipedia has become one of the more accurate and up to date reference resources available.

Perhaps you might go through the quotes I posted and demonstrate where they're incorrect, less than factual or just plain biased. I'd be interested to see you back up your assertion that the resource is unreliable with actual citations.

By the way ... as an experiment ... I challenge you to sign on with Wikipedia and TRY to sabotage on article with some extremist venom. Lets see how far you get with it.

Be careful about looking down your nose ... it looks quite silly on most people. Particularly when there's no substance behind their arrogance.

Joe Kozlowski wrote:

You really should read up on it before you speak out on it. Discover Magazine did a fairly lengthy piece on Wikipedia with a fairly lengthy outline of why, with cross checks, multiple edits and editors as well as rules that would delete most of these forum posts, Wikipedia has become one of the more accurate and up to date reference resources available.

Perhaps you might go through the quotes I posted and demonstrate where they're incorrect, less than factual or just plain biased. I'd be interested to see you back up your assertion that the resource is unreliable with actual citations.

By the way ... as an experiment ... I challenge you to sign on with Wikipedia and TRY to sabotage on article with some extremist venom. Lets see how far you get with it.

Be careful about looking down your nose ... it looks quite silly on most people. Particularly when there's no substance behind their arrogance.

I didn't say what you quoted was incorrect. I just questioned the source in general, as I've done before when people quoted Wikipedia on these forums.

I'm also not an extremist in any sense of the word, as you could have known if you read any of my previous posts.

I have no desire to sabotage an article on Wikipedia and will maintain that the idea of an encyclopedia that everybody can contribute to is bound to invite mistakes and controversy that might very well be edited out but will still pop up at times. It's like opening up a medical guide book for everyone to edit and contribute to.

JvR wrote:

I didn't say what you quoted was incorrect. I just questioned the source in general, as I've done before when people quoted Wikipedia on these forums.

I'm also not an extremist in any sense of the word, as you could have known if you read any of my previous posts.

I have no desire to sabotage an article on Wikipedia and will maintain that the idea of an encyclopedia that everybody can contribute to is bound to invite mistakes and controversy that might very well be edited out but will still pop up at times. It's like opening up a medical guide book for everyone to edit and contribute to.

I grant you didn't SAY what I quoted was incorrect ... but you sure left that impression to anyone reading this thread.

In the meantime, I'm sure you're an absolutely wonderful person and I find most of your writing to be generally intelligent ... however, I also sincerely believe that to blanket question a resource without being able to demonstrate in what manner it is incorrect is counter productive and probably irresponsible. By suggesting my resource was less than factual you cast me in a negative light ... and I'm prefectly capable od doing that all by myself without any help.

The quotes I used were not based on opinion ... they were quotes from legislation passed by Congress, that is to say, factual. In other instances I've quoted the definitions of words ... which are generally not very much the subject of opinion, either. The only thing all the quotes had in common besides being verifiable facts was that they were gathered together in the same place.

Actually, the editors of Wikipedia ... and there are MANY of them as you have noted ... work very hard at eliminating OPINION. From the time I've spent reading articles posted on Wikipedia over the last year or so, I would say they've been quite successful in that endeavour. In cases where individuals attempt to interject OPINION into the articles, those OPINIONS are removed ... in many cases within minutes ... by someone who knows the difference between fact and OPINION within that particular filed of knowledge.

When it comes to the power of peer pressure (hudreds of editors, all your peers) one doesn't want to gain a reputation for continually trying to insert OPINIONS. Wikipedia (or the software used) keeps track of who writes which articles and makes which edits. If one gets a reputation for being consistantly "other than factual" one is bared from further edits. If you think about it, peer review is the element that makes the scientific method work.

Spend some time looking up things in Wikipedia, things that you can verify through other resources, and see whether or not I'm right or I'm just trying to blow sunshine up your tailpipe.

If you can find places where Wikipedia is over the top and less than factual, get back to me and let me know. I would sincerely appreciate it.

(By way of disclaimer, I am in no way connected or affiliated with Wikipedia. I am registered. I can originate and edit articles there ... but as you point out, anyone can do that.)

http://en.wikipedia.org/wiki/Main_Page

Ty Simone wrote:
Joe,
Some example of how the Wikipedia thing is wrong.

Ty ... Read what I wrote VERY carefully. This is how misunderstandings happen.

Questions were raised spicifically about Posse Comitatus and the Insurrection Act ... both of which require the governor of the state effected to "invite" federal intervention.

I explicitely stated that it was possible that the president was granted greater powers elswhere ... but that it wasn't in those two acts.

I'm not sure how you can find fault with that - or how Wikipedia is wrong (I only used Wikipedia as a resource for the language of the Acts mentioned above). However, I would be more than pleased to have you show me where the error is. Language quoted incorrectly from the two named Acts? If so, where specifically?

As for your expanded explanation of where the presidend DOES in fact derive those powers, thank you. I was curious. (Let me point out again, just so you understand clearly  ... it's not from Posse Comitatus or the Insurrection Act.)

Joe Kozlowski wrote:
Ty ... Read what I wrote VERY carefully. This is how misunderstandings happen.

Questions were raised spicifically about Posse Comitatus and the Insurrection Act ... both of which require the governor of the state effected to "invite" federal intervention.

I explicitely stated that it was possible that the president was granted greater powers elswhere ... but that it wasn't in those two acts.

I'm not sure how you can find fault with that - or how Wikipedia is wrong (I only used Wikipedia as a resource for the language of the Acts mentioned above). However, I would be more than pleased to have you show my.

As for your expanded explanation of where the presidend DOES in fact derive those powers, thank you. I was curious. (Let me point out again, just so you understand clearly  ... it's not from Posse Comitatus or the Insurrection Act.)

I was referring to the Wikipedia quote that says:

Presidents of the United States have issued executive orders since 1789. There is no United States Constitution provision or statute that explicitly permits this, aside from the vague grant of "executive power" given in Article II, Section 1 of the Constitution and the statement "take Care that the Laws be faithfully executed" in Article II, Section 3.

Executive orders do not have legal force by themselves. Most are simply orders issued by the President to United States to executive officers to help direct their operation, the result of failing to comply being removal from office. Some orders do have the force of law when made in pursuance of certain Acts of Congress due to those acts giving the President discretionary powers.

I think the Wikipedia article leaves out that the courts did validate it very early on in the country when that language made much more sense to the common man than it does now. :-)


But In rereading what you wrote, I can see your point of view and on that part you are 100% correct. I did not mean to sound as if I disagreed with it at all.

I think we are kind of looking at different bits and pieces and not the whole of it.

And you are right that that is how misunderstanding start :-)

BlackStarPhoto wrote:
Not sure about FEMA.  But use of the Military for law enforcement is not legal, for support or just to provide assistance to the people is another issue.

See US Code:
Section 1385. Use of Army and Air Force as posse comitatus

      Whoever, except in cases and under circumstances expressly
    authorized by the Constitution or Act of Congress, willfully uses
    any part of the Army or the Air Force as a posse comitatus or
    otherwise to execute the laws shall be fined under this title or
    imprisoned not more than two years, or both.

I've stated this before... FEMA is this nations secret government. FEMA has the power to bring the Army (yes Army, not National guard), into a US city WITHOUT the permission of congress or the president for that matter. It was our leaders way of quelling a possible civilian uprising. An an emergency dosen't have to be a natural disaster according to FEMA guidelines. A riot can be considered an emergency.