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Order Code RS22266
Updated December 26, 2006
~. CRS Report for Congress
The Use of Federal Troops for Disaster
Assistance: Legal Issues
Jennifer K. Elsea
Legislative Attorney
American Law Division
Summary
Hurricane Katrina raised questions concerning the President's legal authority to
send active duty military forces into a disaster area and the permissible functions the
military can perform to protect life and property and maintain order. The Stafford Act
authorizes the use of the military for disaster relief operations at the request of the state
governor, but it does not authorize the use of the military to perform law enforcement
functions, which is ordinarily prohibited by the Posse Comitatus Act. However, the
President may invoke other authorities to use federal troops to aid in the execution of
the law, including the Insurrection Act, as amended and renamed by P.L. 109-364 (H.R.
5122/S. 2766). This report summarizes the possible constitutional and statutory
authorities and constraints relevant to the use of armed forces, including National Guard
units in federal service, to provide assistance to states when a natural disaster impedes
the operation of state and local police.
Recognizing the risk that a standing army could pose to individual civil liberties and
the sovereignty retained by the several states, but also cognizant of the need to provide
for the defense of the nation against foreign and domestic threats, the framers of the
Constitution incorporated a system of checks and balances to divide the control of the
military between the President and Congress and to share the control of the militia with
the states. This report summarizes the constitutional and statutory authorities and
limitations relevant to the employment of the armed forces to provide disaster relief and
law enforcement assistance.
Congress has the constitutional power to raise, support, organize and regulate the
armed forces, art. I, 8, cls. 11-14. These clauses do not expressly limit Congress as to
how, when, or where it might employ the armed forces, although presumably such use
must be in furtherance of other constitutional powers. Congress is also empowered to
provide for calling forth the militia to execute federal law and to suppress insurrections,
8, cl. 15, and to provide for organizing, arming, and disciplining the militia and to
govern them when they are employed in the service of the United States, 8, cl. 16. Once
the army is raised or the militia called forth, the President serves as their Commander-in-
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Elsea, Jennifer K. The Use of Federal Troops for Disaster Assistance: Legal Issues, report, December 26, 2006; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc810342/m1/1/: accessed April 23, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.