Paradoxes of Sovereignty and Citizenship: Humanitarian Intervention at Home

City University of New York Law Review, Dec 2017

By Hawa K. Allan, Published on 10/01/17

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Paradoxes of Sovereignty and Citizenship: Humanitarian Intervention at Home

Paradoxes of Sovereignty and Citizenship: Humanitarian Inter vention at Home Hawa K . Allan 0 1 Recommended Citation 0 The CUNY Law Review is published by the Office of Library Services at the City University of New York. For more information please contact , USA 1 Hawa K. Allan, Paradoxes of Sovereignty and Citizenship: Humanitarian Intervention at Home, 20 CUNY L. Rev. 389 (2017). Available at: Follow this and additional works at: - Law Review Acknowledgements I am grateful to Mark Barenberg, Olati Johnson, Ted Shaw, Kendall Thomas, Patricia Williams, as well as Sherally Munshi, Jeremy Pam and Joanna Cuevas Ingram for their helpful comments. I am also indebted to members of the Columbia Associates-in-Law Workshop, and attendees of panel presentations of this article at the conferences at both the Associations for Law, Culture and Humanities and Law and Society. This article is available in City University of New York Law Review: PARADOXES OF SOVEREIGNTY AND CITIZENSHIP: HUMANITARIAN INTERVENTION AT HOME Hawa K. Allan † † Hawa K. Allan, Careers-in-Law-Teaching Fellow, Fellow at the Center for the Study of Law and Culture, Columbia Law School, J.D. I am grateful to Mark Barenberg, Olati Johnson, Ted Shaw, Kendall Thomas, Patricia Williams, as well as Sherally Munshi, Jeremy Pam and Joanna Cuevas Ingram for their helpful comments. I am also indebted to members of the Columbia Associates-in-Law Workshop, and attendees of panel presentations of this article at the conferences at both the Associations for Law, Culture and Humanities and Law and Society. INTRODUCTION “If I invoked the Insurrection Act against her wishes, the world would see a male Republican president usurping the authority of a female Democratic governor by declaring an insurrection in a largely African American city. That would arouse controversy anywhere. To do so in the Deep South, where there had been centuries of states’ rights tension, could unleash holy hell.” —George W. Bush, Decision Points1 “George Bush doesn’t care about Black people.” —Kanye West2 “I am deeply insulted by the suggestion that we allowed American citizens to suffer because they were black. As I told the press at the time, ‘The storm didn’t discriminate, and neither will the recovery effort. When those Coast Guard choppers, many of whom were first on the scene, were pulling people off roofs, they didn’t check the color of a person’s skin.’ ” —George W. Bush, Decision Points3 “. . . and the fiction of the facts assumes randomness and indeterminacy.” —Claudia Rankine, Citizen4 In the days after Hurricane Katrina breached critical levees and submerged most of New Orleans under water, news reporters 1 GEORGE W. BUSH, DECISION POINTS 321 (2010). 2 See, e.g., Lisa de Moraes, Kanye West’s Torrent of Criticism, Live on NBC, WASH. POST (Sept. 3, 2005), 03/AR2005090300165.html [] (“West: I hate the way they portray us in the media. You see a Black family, it says, ‘They’re looting.’ You see a white family, it says, ‘They’re looking for food.’ And, you know, it’s been five days [waiting for federal help] because most of the people are Black. And even for me to complain about it, I would be a hypocrite because I’ve tried to turn away from the TV because it’s too hard to watch. I’ve even been shopping before even giving a donation, so now I’m calling my business manager right now to see what is the biggest amount I can give, and just to imagine if I was down there, and those are my people down there. So anybody out there that wants to do anything that we can help — with the way America is set up to help the poor, the Black people, the less well-off, as slow as possible. I mean, the Red Cross is doing everything they can. We already realize a lot of people that could help are at war right now, fighting another way — and they’ve given them permission to go down and shoot us! . . . George Bush doesn’t care about Black people!”). 3 BUSH, supra note 1, at 325. 4 CLAUDIA RANKINE, CITIZEN: AN AMERICAN LYRIC 85 (2014). referred to the city as a “third world country”5 and to its mostlyBlack residents stranded in attics and other makeshift shelters as “refugees.”6 Commentators condemned these labels, which they said betrayed a persistent perception of Black citizens as foreigners in their own country.7 While corrective monikers surfaced—such as internally displaced persons, a term for persons dislocated within their country by, say, civil war or natural disaster8—newscasters posed more troubling questions, their cameras rolling at home and minds wandering abroad. “Why no massive airdrop of food and water?”9 CNN news anchor Soledad O’Brien asked on a broadcast aired five days after the hurricane hit. “In Banda Aceh, in Indonesia, they got food dropped two days after the tsunami struck.”10 The above anecdotes raise questions that are this article’s point of departure and site of eventual return. How does one reconcile the swift federal response to a “third world country” abroad relative to the “third world country” at home? Does this Freudian slip, the rhetorical stripping of Black citizenship, bear any relevance to the delayed federal response to Hurricane Katrina? While provocative, these questions are not erudite translations of Kanye West’s blunt assertion. They also do not deign to infer what lies in the hearts or minds of federal decision-makers. These questions, rather, are raised to consider the value of thinking internationally about domestic concerns – specifically, as this article will explore, to consider the federal response to crises at home in light of the conceptual framework developed to guide humanitarian intervention abroad. Returning, for the moment, to this article’s epigraph, why in response to a natural disaster had President Bush’s administration considered declaring an “insurrection”? Why, given this inclination, had the presidential administration been hesitant to declare an “insurrection in a largely African American city”?11 The source of this conundrum is the Insurrection Act of 1807:12 an arcane and largely-unstudied statute that also happens to be the linchpin of iconic events that—from pro- and anti-slavery clashes of Bleeding Kansas, through public school desegregation in the South, to the Los Angeles riots—epitomize the formation and frustrations of Black citizenship in the United States. The Insurrection Act, in brief, authorizes the president to domestically deploy federal troops with law enforcement powers in the event of an “insurrection,” “rebellion” or “unlawful combination.”13 In other words, in the event of some internal crisis or chaos or upheaval, as it were, the Insurrection Act allows the president to use federal military force to restore law and order. While the Insurrection Act provides clear legal authority for the domestic deployment of federal troops to enforce the law, determining when to exercise this authority is ambiguous because, among other things, there is no definition of “insurrection” (or “rebellion” or “unlawful obstruction”) in the statute.14 Thus, what constitutes an “insurrection” is in the eye of the beholder – either 11 BUSH, supra note 1, at 321. 12 Insurrection Act of 1807, ch. 39, 2 Stat. 443 (current version at 10 U.S.C. §§ 331335 (2006)). The Insurrection Act is part of a bundle of legislation passed over the course of a century defining the powers of the federal government to call forth state militias or deploy federal troops, colloquially referred to as the Militia Acts. See generally Stephen I. Vladeck, Note, Emergency Power and the Militia Acts, 114 YALE L.J. 149, 152-53 n.9 (2004). 13 10 U.S.C. §§ 331-333 (2006). 14 There is some case law defining insurrection, however largely in the context of insurance litigation. See, e.g., Pan Am. World Airways, Inc. v. Aetna Cas. & Sur. Co., 505 F.2d 989, 1005 (2d Cir. 1974) (stating that insurrection requires “an intent to overthrow a lawfully constituted regime”). that of the president, who may unilaterally proclaim an incident as such, or of the state governor, who may request that the president make a proclamation of “insurrection,” thereby, in either scenario, formally triggering the authorization for federal troops to be deployed with law enforcement powers.15 As an “insurrection” is effectively what the executive proclaims one to be, it is difficult to deductively define whether a given incident warrants such a proclamation. Thus, the term lends itself to being defined inductively— that is, by reference to a survey of past incidents that have been proclaimed as such. As will be discussed in this article, the Insurrection Act is a recurring facet of the history of civil rights in the United States— generally, in scenarios where the federal government has militarily intervened to enforce the civil rights of Black Americans and/or to suppress “race riots.” Bleeding Kansas, public school desegregation, and the Los Angeles riots, noted above, are merely three examples. Under the Insurrection Act, federal military intervention was also authorized, for example: during Radical Reconstruction; to enforce the rights of civil rights protesters to march from Selma to Montgomery; and, further, to suppress riots that erupted in Detroit during 1947 and 1963; as well as to put down civil unrest in the wake of Martin Luther King, Jr.’s assassination in Baltimore and Washington D.C. Past invocations of the Insurrection Act, then, reflect a historical tension over the legitimacy of federal intervention in state affairs where Black citizens are concerned. An overview of the above incidents reveals that the Insurrection Act has generally been invoked unilaterally by the President to enforce civil rights (violated by state actors), or by request of the state governor in order to suppress “race riots” (engaged in by non-state actors)—with intervention in the former instances deemed more politically fraught insofar as state officials considered it an illegitimate intrusion upon sovereignty,16 and in the latter cases—while less politically fraught insofar as federal military intervention was requested by state officials— still nonetheless the subject of controversy. Accordingly, in the case of Hurricane Katrina, the proposed invocation of “insurrection” was controversial in light of the state governor’s objection to federal law enforcement.17 President Bush was reportedly concerned over media reports of looting and violence in New Orleans, and therefore did not want to deploy a requested 40,000 federal troops to Louisiana without law enforcement powers provided under invocation of the Insurrection Act18—i.e., without the authority to, among other things, search suspects, seize evidence, make arrests, and, more generally, use force.19 Then-Louisiana Governor Kathleen Blanco, for her part, objected to the proposed invocation of the Insurrection Act.20 Instead, she contended that the president authorize the deployment of the requested troops and other assistance solely in accordance with an act that had already been triggered21—the Robert T. Stafford Disaster Relief and Emergency Assistance Act.22 The Staf17 See, e.g., Manuel Roig-Franzia & Spencer Hsu, Many Evacuated, but Thousands Still Waiting, WASH. POST (Sept. 4, 2005), [] (“Behind the scenes, a power struggle emerged, as federal officials tried to wrest authority from Louisiana Gov. Kathleen Babineaux Blanco (D). Shortly before midnight Friday, the Bush administration sent her a proposed legal memorandum asking her to request a federal takeover of the evacuation of New Orleans, a source within the state’s emergency operations center said Saturday. The administration sought unified control over all local police and state National Guard units reporting to the governor. Louisiana officials rejected the request after talks throughout the night, concerned that such a move would be comparable to a federal declaration of martial law.”). 18 See, e.g., Eric Lipton et al., Political Issues Snarled Plans for Troop Aid, N.Y. TIMES (Sept. 9, 2005), []. 19 Id. (“To seize control of the mission, Mr. Bush would have had to invoke the Insurrection Act, which allows the president in times of unrest to command activeduty forces into the states to perform law enforcement duties.”). 20 Spencer S. Hsu et al., Documents Highlight Bush-Blanco Standoff, WASH. POST (Dec. 5, 2005), AR2005120400963_pf.html [] (“Blanco’s reluctance stemmed from several factors. According to documents and aides, her team was not familiar with relevant laws and procedures, believed the change would have disrupted Guard law enforcement operations in New Orleans and mistrusted the Bush team, which they saw as preoccupied with its own public relations problems and blame shifting.”). 21 Letter from Kathleen Babineaux Blanco, Governor, La., to George W. Bush, President, U.S. (Aug. 27, 2005), room&tmp=detail&catID=1&articleID=778&navID=3 []; see also Blanco’s State of Emergency Letter to President Bush, TIMES-PICAYUNE (Aug. 27, 2005, 12:00 PM), _of_emergency_letter_to_president_bush.html []. 22 Robert T. Stafford Disaster Relief and Emergency Assistance Act, Pub. L. No. 100-707, 102 Stat. 4689 (1988) (current version at 42 U.S.C. §§ 5121-5191). The Stafford Act is the statutory authority for most federal disaster response activities, especially with regard to FEMA and FEMA programs. The Stafford Act was originally signed into law on November 23, 1988 as an amendment to the Disaster Relief Act of ford Act is generally applied to coordinate the federal response to natural disasters such as hurricanes, floods and brush fires, (although it can also be applied to respond to “man-made disasters,” as defined therein). Moreover, and importantly, the Stafford Act does not authorize any federal troops deployed thereunder to enforce the law. Thus, a dispatch of federal troops consistent with the Stafford Act would allow Blanco, as governor, to retain control over the police powers of the state. A deployment of requested federal troops under the Insurrection Act, by contrast, would have both conferred such troops with law enforcement authority and stripped the governor of her role as ultimate commander-in-chief of the National Guard, which would have been federalized under executive command. In the end, the Louisiana governor prevailed in the federalism dispute, and the requested additional troops were deployed five days after the hurricane hit landfall23—well into the televised crisis in New Orleans. In the end, as will become clear by international analogy, the president’s proposed invocation of the Insurrection Act was more akin to contemplated humanitarian intervention—in one sense, military action taken against an insurgency that gravely endangers the rights and lives of civilians—than humanitarian aid—the provision of emergency relief to help rescue and shelter civilians amid a disaster. Indeed, akin to the ostensible purpose of humanitarian intervention, the Insurrection Act has been invoked, on the one hand, to enforce the fundamental rights of persons persecuted by a given state (or whom such state is unable or unwilling to protect from persecution), and, on the other, to enforce the law amid a total breakdown of order—in other words, to enforce civil rights or to suppress race riots. In light of this analogy, the president’s hesitancy to deploy federal troops to Louisiana under the Insurrection Act is analogous to the formal inhibitions to engage in humanitarian intervention abroad. The contemplated proclamation of “insurrection” at home, then, is more analogous to the decision whether to restore law and order (and thereby save lives) in, say, 1974, Pub. L. No. 93-288, 88 Stat. 143. The most recent reauthorization happened in 2013. Robert T. Stafford Disaster Relief and Emergency Assistance Act, Pub. L. No. 113-2, 127 Stat. 4. 23 STEVE BOWMAN ET AL., CONG. RESEARCH SERV., HURRICANE KATRINA: DOD DISASTER RESPONSE 1 (2005), [https://perma .cc/4VYJ-FSX4] (“The Department of Defense’s Northern Command began its alert and coordination procedures before Katrina’s landfall, however many deployments did not reach the affected area until days after.”). Somalia in the early 1990s,24 than the decision to help provide aid and shelter to tsunami victims in Indonesia.25 Following the international analogy to its conclusion— namely, the paradox of sovereignty and citizenship—this article reconsiders the Katrina crisis and other federal military interventions at home in light of the pre-existing analytical framework of “just war” theory. In other words, this article applies the conceptual framework developed to guide humanitarian intervention abroad—i.e., questions of legality, necessity, and purpose—to the federal response to Hurricane Katrina and other “crises” at home. Though immediately counterintuitive, the conceptual framework is useful for considering—both retrospectively and prospectively— domestic federal military intervention. This framework not only sheds new light on familiar historical events, but also can be a useful aid in the decision-making process regarding future domestic deployments of federal troops. As discussed in Part I, similar questions of legality, necessity, and purpose—or, in “just war” parlance, legal authority, just cause, and right intention—arise domestically that can be clarified by reference to the international context. Further, in distinguishing humanitarian intervention—i.e., the use of military force to enforce fundamental rights and/or law and order—from humanitarian aid—i.e., the non-combative extension of emergency relief to save lives—this article considers how the interpretation of a given crisis at the executive level can influence the nature of federal response. Accordingly, the following question is presented in Part I: when is domestic federal intervention framed as humanitarian intervention versus humanitarian aid? Moreover, in considering the purpose (or intention) of federal military intervention, Part I of this article examines the potential for selective enforcement where domestic humanitarian intervention and aid are concerned. As discussed in Part II of this article, an overview of domestic federal military intervention in light of “just war” theory uncovers two paradoxes—one of sovereignty and another of citizenship. As for sovereignty, while it would appear that federal military infringement upon the sovereignty of the several states during a crisis should be relatively uncontroversial given the clear legal authority 24 See, e.g., Somalia, 1992-1993, U.S. DEP’T STATE: OFFICE OF THE HISTORIAN, https:/ / []. 25 See, e.g., Tsunami Aid: Who’s Giving What, BBC NEWS (Jan. 27, 2005, 8:40 AM), [] (“Washington also sent military assistance involving 12,600 personnel, 21 ships, 14 cargo planes and more than 90 helicopters.”). to do so, the potential political fallout of doing such renders the sovereignty of the states far less permeable than would be imagined—perhaps akin to that of a foreign state. As to citizenship, while the federal government’s responsibility to protect all citizens within United States borders is unequivocal and expected to be fulfilled uniformly, an overview of the nature of federal military intervention in response to a given domestic crisis raises the question whether, where Black citizens have been concerned, the primary intention to restore law and order has trumped any intention to save lives. HUMANITARIAN INTERVENTION AT HOME Though a single definition of “humanitarian intervention” has not emerged, the term is generally understood to refer to the use or threat of use of military force by one or more states within another state for ostensibly humanitarian purposes.26 Humanitarian intervention is at times construed to encompass the provision of emergency relief by one or more states to another in order to help rescue and shelter civilians amid a disaster—a relatively uncontroversial activity referred to herein as humanitarian aid.27 Indeed, U.S. provision of emergency aid to Indonesia in the wake of the tsunami is an example of such aid.28 Used here, and as illustrated in the table below, “humanitarian intervention” describes a relatively controversial activity; it refers to the military intervention of one or more states into another (1) for the ostensible purpose of 26 See, e.g., Ryan Goodman, Humanitarian Intervention and Pretexts for War, 100 AM. J. INT’L L. 107, 107 n.2 (2006), RGoodmanHumanitarianInterventionPretextsforWar.pdf [] (“A conventional definition of ‘humanitarian intervention’ is ‘the threat or use of force by a state, group of states, or international organization primarily for the purpose of protecting the nationals of the target state from widespread deprivations of internationally recognized human rights.” (quoting SEAN D. MURPHY, HUMANITARIAN INTERVENTION: THE UNITED NATIONS IN AN EVOLVING WORLD ORDER 11-12 (1996))). 27 See, e.g., Kate Mackintosh, Beyond the Red Cross: The Protection of Independent Humanitarian Organizations and Their Staff in International Humanitarian Law, in INTERNATIONAL LAW AND HUMANITARIAN ASSISTANCE: A CROSSCUT THROUGH LEGAL ISSUES PERTAINING TO HUMANITARIANISM 33, 36 (Hans-Joachim Heintze & Andrej Zwitter eds., 2011); Deliver Humanitarian Aid, UNITED NATIONS, []. 28 Press Release, Office of the Press Sec’y, White House of President George W. Bush, Fact Sheet: Continuing Report for Tsunami Relief (Feb. 9, 2005), [] (“The Defense Department has been providing vital supplies and logistics to the humanitarian effort since December 30.”). enforcing the human rights of persons persecuted by the target state or whom the target state is unable or unwilling to protect from persecution by some third party, or, further, (2) amid a total breakdown of law and order. Prior to the events of September 11, 2001, examples of such interventions made by the United States through the North Atlantic Treaty Organization (“NATO”) or otherwise include those in Bosnia, Kosovo, and Somalia;29 moreover, an example of a situation that, in hindsight, has been deemed to warrant such intervention is the genocide in Rwanda.30 29 See generally The Evolution of NATO, 1988-2001, U.S. DEP’T STATE: OFFICE OF THE HISTORIAN, []; see also The War in Bosnia, 1992-1995, U.S. DEP’T STATE: OFFICE OF THE HISTORIAN, bosnia []; Somalia, 1992-1993, U.S. DEP’T STATE: OFFICE OF THE HISTORIAN, []; Peace Support Operations in Bosnia and Herzegovina, NATO (Sept. 7, 2015, 2:52 PM), .htm []; NATO’s Role in Kosovo, NATO (Sept. 6, 2016, 12:23 PM), [https://perma .cc/Q2GK-2L62]. 30 See, e.g., ALAN J. KUPERMAN, THE LIMITS OF HUMANITARIAN INTERVENTION: GENOCIDE IN RWANDA 109 (2001) (“A realistic U.S. military intervention launched as soon as President Clinton could have determined that genocide was being attempted in Rwanda would not have averted the genocide. It could, however, have saved an estimated 75,000 to 125,000 Tutsi from death, about 15 to 25 percent of those who ultimately lost their lives, in addition to tens of thousands of Hutu.”); Scott R. Feil, Could 5,000 Peacekeepers Have Saved 500,000 Rwandans?: Early Intervention Reconsidered, ISD REP., April 1997, at 1, 1-5, Could_5000_Feil.pdf []; Ghosts of Rwanda: America’s Response to the Genocide, PBS.ORG: FRONTLINE (Apr. 1, 2004), pages/frontline/shows/ghosts/themes/response.html []. For more background on the institutional failures that prevented intervention in the Rwandan Genocide, see Matthew Levinger, Why the U.S. Government Failed to Anticipate the Rwandan Genocide of 1994: Lessons for Early Warning and Prevention, 9 GENOCIDE STUD. & PREVENTION, no. 3, 2016, at 33, viewcontent.cgi?article=1362&context=gsp []. Legal scholars, moral philosophers, as well as both crafters and critics of U.S. foreign policy have long theorized about and debated the legitimacy of humanitarian intervention in the international context.31 The legitimacy of such intervention has been at issue in light of the general non-intervention principle—whereby the sovereignty of a given state is inviolable absent certain exceptional circumstances.32 While legal scholars of humanitarian intervention have predominantly considered the requisite exceptional authority of a given state to infringe upon the sovereignty of another state, under the UN Charter and otherwise,33 moral philosophers have attempted to establish criteria for determining those instances where humanitarian concerns trump the integrity of state sovereignty.34 Furthermore, moral philosophers, as well as commentators on U.S. foreign policy, have contemplated the purity of 31 See, e.g., RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW §§ 703 cmt. e, 905 (AM. LAW INST. 1987); Alex J. Bellamy, Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Intervention after Iraq, ETHICS & INT’L AFFAIRS, October 1, 2005, at 31, 50-54, [https://]; Goodman, supra note 26; Louis Henkin, Kosovo and the Law of “Humanitarian Intervention”, 93 AM. J. INT’L L. 824 (1999); Rachel VanLandingham, Politics or Law? The Dual Nature of the Responsibility to Protect, 41 DENV. J. INT’L L. & POL’Y 63 (2012); With Good Intentions: U.S. Foreign Policy & Humanitarian Intervention, CATO INST. (Mar. 14, 2006), []. 32 See, e.g., G.A. Res. 2625 (XXV), Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations (Oct. 24, 1970), a25r2625.htm []. 33 See, e.g., MICHAEL WALZER, JUST AND UNJUST WARS: A MORAL ARGUMENT WITH HISTORICAL ILLUSTRATIONS 61 (1977). 34 Id. at 107-08. motives guiding humanitarian intervention. The former have elaborated, among the established moral criteria for such intervention, that intervening states use military force – in all instances warranting such – for purely humanitarian purposes;35 the latter have relied on empirical analyses to point out that, in practice, such intervention has been selectively conducted by states pursuing interests that are not solely humanitarian in nature.36 In sum, and borrowing terminology also used in “just war” theory, domestic federal military intervention has largely considered questions of (1) legality, or proper (i.e., legal) authority to intervene; (2) necessity, or whether the relevant incident constitutes a just cause warranting intervention; and, (3) purpose, that is, independent of the stated cause or goal of a given intervention, whether the intervention is made with the right intention.37 As an initial matter, principles developed to guide humanitarian intervention abroad are instructive at home insofar as they contextualize and assist an analysis of the decision-making process entailed in authorizing domestic federal military intervention. Taking the delayed federal response to Hurricane Katrina as a key example and cautionary tale, it will become clear that decisions made at the executive level as to whether to invoke the Insurrection Act— i.e., engage in humanitarian intervention at home—are not only influenced by the same kind of concerns that arise when contemplating humanitarian intervention abroad, but can also hinder or distort the federal response to domestic disaster. As summarized in the table below, this conceptual framework—questions of legal authority, just cause, and right intention—is applied in Part I to reconsider domestic federal military intervention. This conceptual exercise will elaborate on federal military intervention in theory and practice. The theory, as will be discussed in subsection A.1., is grounded in legal authority—that is, the legal framework authorizing domestic federal military intervention in the exceptional event of an “insurrection.” The consideration of practice as discussed in subsections A.2. and A.3., will be illustrated by each of those incidents deemed to warrant a just cause—i.e., events deemed to be “insurrections”—and by a consideration of right intention—i.e., the disparate purposes of “crisis” response set forth in the Insurrection 35 Id. 36 See, e.g., id. at 102-03. 37 For an overview of the definitional components of “just war” – and in particular, jus ad bellum, which refers to the theory of justification for initiating a war – see War, STAN. ENCYCLOPEDIA PHIL. (May 3, 2016), #JusAdBell []. and Stafford Acts, respectively, and the possibility of selective enforcement as to which legislation is applied to respond to a given event. This analysis will ultimately show how the legal framework governing domestic federal military intervention betrays the fraught relation between race and state sovereignty, and, further, raises questions of disparate responses to disaster as to different subsets of citizens. In other words, this exercise will summarily reveal paradoxes of sovereignty and citizenship. The conceptual exercise employed in this article—considering federal military intervention at home in light of the analysis developed to guide humanitarian intervention abroad – could appear Grave Violation of Human Rights by State Actors, or by Non-State Actors that Overwhelms Capacity of State to Respond Theoretical: Solely Humanitarian Purposes Empirical Trend: State Sponsored Human Rights Violation; Insurgency by NonState Actors that causes Human Rights Violations Insurrection Act (and Article IV, Sections 2 & 4, Article I, Section 8, and Article II, Section 2 of the Constitution) Violation of Constitutional Rights by State Actors, or by Non-State Actors that Overwhelms the Capacity of any of the Several States to Respond Theoretical: Solely Humanitarian Purposes Empirical Trend: State Sponsored Civil Rights Violations; ‘Race Riots’ Engaged in by NonState Actors incongruous where legal authority is concerned. Indeed, as discussed further, while the legal authority of one state to militarily intervene in the affairs of another state is equivocal, the same authority domestically, by contrast, is unequivocal. The “non-intervention” principle in the international context establishes a high threshold for one state to violate the sovereignty of another—a threshold that is not only politically fraught but also legally vague.38 However, as will become clear, there is an analogous “nonintervention” principle in effect in the U.S. federalist system of government, which renders federal military intervention politically fraught regardless of the unambiguous legal authorization of the executive to engage in it. In the international context, the UN Charter is the primary source of the legal authority of one or more member states to engage in humanitarian intervention.39 However, such authority is established in the Charter as an exception to a general rule that prohibits a given state from intervening in the internal affairs of another. Specifically, the UN Charter sets forth a “non-intervention principle” enshrining the sanctity of state sovereignty, stating in Article 2(7) that “nothing . . . shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.”40 Member states, accordingly, must not violate the territorial integrity of another state except for reasons of selfdefense or, arguably, to maintain international peace and security.41 While some scholars have cited other sources of international law that legally authorize humanitarian intervention42—including, for example, the obligation to prevent and punish genocide under the Genocide Convention43—it is clear that any incidents internal to a given state that legally warrant intervention constitute exceptions to the general rule to respect state sovereignty. Again, similar quandaries of legal authority may not be immediately thought to occur domestically. For one, the responsibility of the U.S. government to protect non-citizens abroad is of dubious legal certainty and politically fraught;44 by contrast, the same obligation at home is legally unequivocal and, moreover, presumably politically uncontroversial. However, upon further reflection, it is clear that the degree of autonomy reserved to the several states in the federalist system of U.S. government is a domestic analogue to the sanctity of state sovereignty enshrined in the U.N. Charter. Indeed, federalism entails a separation of powers between the federal and state governments—the latter of which are entitled to a degree of autonomy, (or, as popularly termed, “states” rights’), that is analogous to the international concept of “state sovereignty.” Certainly, there are instances in which federal and state governments have overlapping powers; however, key to a consideration of humanitarian intervention at home is the constitutional delegation of police powers to the several states, (subject, of course, to specified exceptions). The constitutional and legislative manifestations of the “nonintervention principle,” as well as codified exceptions to this principle, are discussed in this section. First, this section gives an overview of the limits on the domestic deployment of federal troops enumerated in the U.S. Constitution, including a brief discussion of anxieties documented in The Federalist Papers45 about the threat of establishing a federal military force. Next, this section discusses the Posse Comitatus Act of 1878,46 post-Civil-War legislation that generally prohibits the domestic deployment of federal troops to enforce the law. Further, this section discusses a relevant exception to the Posse Comitatus Act—the Insurrection Act, which is the domestic analogue to legally authorized humanitarian intervention. Finally, this section discusses the Stafford Act, which is legislation that authorizes the federal administration of humanitarian aid to the several states. 1. “Non-Intervention” Principle Analogous to the non-intervention principle in the international context, the Constitution, as a general rule, reserves to the several states the power to enforce the law within their respective territories. The Tenth Amendment reserves to the several states, or to the people, any powers not expressly granted to the federal government or not otherwise prohibited by the Constitution—including implied police powers.47 The implied police powers of the state have been construed as those exercised to promote and maintain the health, safety, morals, and general welfare of the public—powers which are understood to authorize each of the several states to enforce law and order within their territories. The laws of the several states, moreover, are fairly uniform in establishing the governor, chief executive of the state, as commander-in-chief of the state militia—which, in modern day, has been formally reconstituted as the National Guard.48 The Constitution, however, also establishes a framework for the federal exercise of police power in exceptional circumstances. Article IV, Section 4 of the Constitution guaranteeing a republican form of government may be interpreted to authorize the domestic deployment of federal troops in furtherance of such guarantee;49 further, Article IV, Section 4 regarding the federal obligation to protect the several states from domestic violence may be interpreted to authorize the same.50 As for the federal government’s exceptional authorization to commandeer state military forces, Article I, Section 8, Clause 15 of the Constitution authorizes Congress to call forth the state militia to execute the laws of the union—i.e., federal law—to suppress insurrections and repel invasions.51 Further, under Article II, Section 2, Clause 1 the president is the commander-in-chief of the U.S. army and navy, as well as of the militia of the several states when called into the actual service of the federal government.52 In tandem, these provisions allow for state militia, when called forth by Congress, to be federalized under presidential command. In other words, the president is authorized to federalize, and thereby usurp, a state governor’s command over state mili47 U.S. CONST. amend. X. 48 53 AM. JUR. 2D Military & Civil Defense § 30 (2017). 49 U.S. CONST. art. IV, § 4. 50 Id. 51 Id. art. I, § 8, cl. 15. 52 Id. art. II, § 2, cl. 1. tia—as presently constituted, the National Guard—and, further, deploy such troops domestically in order to enforce the law. As discussed in this subsection, Congress delegated to the president its authority to call forth the state militia to enforce the law in, among other legislation, the Insurrection Act and related statutes collectively referred to as the Militia Acts.53 Before elaborating on the legislative authority for the president to use federal (and in the case of the state militia, federalized) military force domestically, it is useful to briefly consider the general constitutional rule and its exceptions in light of initial concerns over the establishment of a federal military documented in The Federalist Papers54—namely, anxieties over the threat of standing armies and the potential abuse of federal power. a. The Federalist Papers The Federalist Papers55 set forth the theoretical underpinning for the domestic non-intervention principle, namely anti-federalist fears about the potential use of the federal military to subjugate the peoples of the several states. In allaying such fears, federalists— Alexander Hamilton and James Madison, in particular—minimized the perceived threat posed by a federal military, whose domestic deployment they presumed would be limited to protecting the republic from invasion and suppressing any insurrections in one or more of the several states.56 Moreover, they extolled the potency of the state militia, which they contended would be sufficiently robust to combat any abuse of federal military power.57 53 See, e.g., Vladeck, supra note 12, at 152-53 n.9 (“The five statutes are the Calling Forth Act of 1792, ch. 28, 1 Stat. 264 (repealed 1795); the Militia Act of 1795, ch. 36, 1 Stat. 424 (repealed in part 1861 and current version at 10 U.S.C. §§ 331-335 (2000)); the Insurrection Act of 1807, ch. 39, 2 Stat. 443 (current version at 10 U.S.C. §§ 331335 (2000)); the Suppression of the Rebellion Act of 1861, ch. 25, 12 Stat. 281 (current version at 10 U.S.C. §§ 331-335 (2000)); and specific parts of the Ku Klux Klan (Civil Rights) Act of 1871 , ch. 22, §§ 3-4, 17 Stat. 13, 14-15 (expired in part 1873 and current version at 10 U.S.C. § 333).”). Id. at 159-67. 54 THE FEDERALIST PAPERS, supra note 45. 55 Id. 56 See THE FEDERALIST NO. 29 (Alexander Hamilton), NO. 46 (James Madison). 57 It is worth noting, here, an analogy to the international context – namely, early discussions over the contemplated authority of the UN Security Council to use military force in order to “maintain or restore international peace and security.” U.N. Charter art. 39. Similar to the adjudged weakness of the American confederation of sovereign states as compared to the proposed federalist system of government, founding members of the UN determined that the establishment of an armed force commandeered by the Security Council was a marked improvement over the former system under the League of Nations—which lacked its own military force and depended solely on the armed forces of state members. Before elaborating on the non-intervention principle set forth in The Federalist Papers and its relation to insurrection, it is useful to first delineate the “militia,” as referenced therein and in the Constitution, from the distinct and at times encapsulating “federal military.” “Militia” is referred to in The Federalist Paper No. 29 as the military forces of the several states subject to the direction of state officials.58 Such militia, further, was to be distinct from the body of troops that would constitute the proposed federal military—i.e., those bodies of armed forces including the army and the navy, among others. The Federalist Papers also contemplated the role of the federal military in suppressing insurrections. As Alexander Hamilton expressed in The Federalist Paper No. 28, regardless of the ultimate form of government, it would be necessary to have “a force constituted differently from the militia, to preserve the peace of the community and to maintain the just authority of the laws against those violent invasions of them which amount to insurrections and rebellions.”59 Though Hamilton contemplated that a federal military would be the force of first resort for suppressing insurrection, he also considered the deployment of state militia as a supplemental force in such a scenario: “In times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition.”60 Apart from the emphasized need for a federal military to suppress insurrection, the role and potency of this force was generally downplayed relative to the state militia and other armed mobilizations of peoples within the several states. James Madison, for example, attempted to dispel any concerns over the potential for the abuses of a federal military force by asserting that the state militia would be sufficiently armed and numerous to repel an army that served at the will of the federal government.61 Similar assertions were made about the relative potency of state and federal military forces in discussions about the unorganized militia—i.e., self-mobil58 THE FEDERALIST NO. 29 (Alexander Hamilton). It was proposed therein that the federal government provide for the organizing, arming, and disciplining of the militia, and for governing them when they are in federal service. However, the appointment of officers and the authority of training the militia according to a discipline prescribed by Congress would be reserved to the several states. 59 THE FEDERALIST NO. 28, at 179 (Alexander Hamilton) (Clinton Rossiter ed., 1961). 60 THE FEDERALIST NO. 29, at 187 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (emphasis added). 61 THE FEDERALIST NO. 46, at 299 (James Madison) (Clinton Rossiter ed., 1961). the distinction between suppressing a “race riot” and enforcing civil rights can be blurry, as past attempts to exercise and enforce civil rights have incited riots—which, in turn, have been suppressed by federal military intervention in order to enforce civil rights. Again, by international analogy, those incidents deemed to warrant humanitarian intervention abroad are all marked by a grave violation of human rights and, thereby, a critical disruption of law and order; however, a fine distinction can be made between those incidents where rights violations were the primary justification for intervention (as with civil rights enforcement at home) and those where rights violations were incident to large-scale unrest (as with “race riots”). For instance, there is an analogous distinction between those incidents deemed just causes on account of the grave violation of human rights, as in the genocides in Bosnia, Kosovo, and Rwanda, and those incidents deemed such on account of violent insurgencies or clashes that required suppression in order to restore law and order (and thereby enforce human rights), as in Somalia. Accordingly, this article categorizes as “race riots” those incidents where suppressing a race-related civil disturbance was the priority of federal military intervention, regardless of whether presumed or apparent civil rights violations brought about or were implicit in the disturbance. Those incidents that meet such criteria are: the violent clashes in Bleeding Kansas; anti-Chinese expulsion campaigns in the Northwest; the Detroit race riots of 1943 and 1967; riots in Baltimore and Washington, D.C. following the assassination of Martin Luther King, Jr.; looting in St. Croix in the aftermath of Hurricane Hugo; and riots in Los Angeles in the wake of the Rodney King verdict.158 With the exception of the Hurricane nate such incidents as “rebellions” or “uprisings” to indicate the socio-economic and civil-rights related grievances that may underlie them and, thereby, the righteous indignation behind such disturbances. Neutral descriptors such as “unrest” or “civil disturbance,” accordingly, have been used to sidestep the contention that can arise from designating an incident a “race riot.” Nonetheless, the term is used here to highlight larger claims made in this article about race and state sovereignty illustrated through the history of insurrection. 158 See, e.g., Vivienne M. Baulch & Patricia Zacharias, The 1943 Detroit Race Riots, Detroit News: Mich. Hist. (Feb. 10, 1999, 8:00 PM), history/1999/02/10/the-1943-detroit-race-riots/ []; William Branigin, Hurricane Hugo Haunts Virgin Islands, WASH. POST (Oct. 31, 1989), hugo89a.htm []; Kathleen Koch, Nation’s Capital Still Recovering from 1968 Riots, CNN (Apr. 4, 1998, 2:16 PM), 9804/04/mlk.dc.riots []; People and Events: Bleeding Hugo incident, federal military intervention in all of the above was at the request of the state governor, and—though they collectively raised less concern among state officials over the legitimacy of such intervention—they were nonetheless the subject of controversy. Several of the above incidents—namely, the Detroit riots, the riots following Martin Luther King, Jr.’s assassination, and the Los Angeles riots—are well-known and commonly understood to be ‘race riots’. They are notable for the purposes of this article in that they illustrate the trend discussed above: race-related civil disturbances deemed insurrections for the purposes of authorizing federal military intervention (by local invitation) to enforce law and order disrupted by non-state actors. Indeed, federal military intervention in each of these instances was authorized at the behest of the respective state governor. Further, notwithstanding that intervention in these instances was requested by state officials, the rhetoric of public speeches (and private discussions) indicates the controversial nature of the insurrection proclamation. With the exception of the proclamation made attendant to the Detroit riot of 1943,159 all of the remaining proclamations include substantially overlapping language advising that “the law enforcement resources available to the City and State, including the National Guard, have been unable to suppress such acts of violence and to restore law and order”160—language which signals that federal military intervention was a last resort. Such framing is evident in a transcript of President Johnson’s conversations with advisers and relevant state governors in the midst of riots sparked by Martin Luther King, Jr.’s assassination. In discussing plans for the domestic deployment of troops to suppress the riots, President Johnson instructed Mayor Richard Daley of Chicago that the governor of IlliKansas, 1853-1861, PBS.ORG, []; Robert Reinhold, Riots in Los Angeles: The Overview; As Rioting Mounted, Gates Remained at Political Event, N.Y. TIMES (May 5, 1992), http:// []; Kie Relyea, Remembering Washington’s Chinese Expulsion 125 Years Later, SEATTLE TIMES (Nov. 7, 2010, 9:46 AM) []. 159 Franklin D. Roosevelt, Proclamation No. 2588, Directing Detroit Race Rioters to Disperse (June 23, 1953), in AM. PRESIDENCY PROJECT (Gerhard Peters & John T. Woolley eds., 2017) , []. 160 See, e.g., Lyndon B. Johnson, Proclamation 384, Law and Order in the State of Illinois (Apr. 7, 1968), in AM. PRESIDENCY PROJECT (Gerhard Peters & John T. Woolley eds., 2017) , [https://]. nois would have to make a “finding” that the state had “used all [its National] Guard, that [it had] used all [its] facilities, that [it is] unable to take care of the situation . . . .”161 President Johnson’s reticence was even more apparent as to civil disturbances in Detroit, where Michigan governor and presidential hopeful George Romney vacillated on formally requesting the deployment of federal troops. Given his political aspirations, Governor Romney, on the one hand, was loath to admit that the riots had escalated to a level beyond his control; and President Johnson, on the other hand, was generally averse to the domestic deployment of troops and, accordingly, insisted on Romney’s formal request to exercise this exceptional measure.162 In some instances, the then-president further emphasized that such intervention was not authorized in order to enforce civil rights, but for the sole purpose of stemming criminal activity. For instance, in response to the Detroit riots of 1967, President Johnson supplemented the proclamation of insurrection with a public address noting that such action was taken with the “greatest regret” and assuring that “[p]illage, looting, murder, and arson have nothing to do with civil rights,” but were “criminal conduct.”163 Similar qualifications were used long after the decade characterized by the 161 Johnson Conversation with Richard Daley on Apr 06, 1968 (WH6804.01), MILLER CTR., []. 162 JOSEPH A. CALIFANO, JR., THE TRIUMPH AND TRAGEDY OF LYNDON JOHNSON: THE WHITE HOUSE YEARS 212-13 (1991) (“Johnson could have ignored Romney’s vacillation and political maneuvering. He had the constitutional and legal authority to deploy troops. He had only to determine that the situation was out of control, order the rioters to disperse, and if they did not, send in troops. But . . . . Johnson did not like to use military troops in domestic disorders. He believed that local and state authorities should maintain order. He couldn’t stand the thought of American soldiers killing American civilians. . . . Romney was reluctant to ‘request’ the President to deploy troops and he refused to admit that he was ‘unable’ to maintain order in Detroit. Johnson insisted on a written request. Finally, Romney sent a telegram to the President, ‘I hereby officially request the immediate deployment of federal troops. . . . There is reasonable doubt that we can suppress the existing looting, arson and sniping without the assistance of federal troops.’”). 163 Lyndon B. Johnson, Remarks to the Nation After Authorizing the Use of Federal Troops in Detroit (July 24, 1967), in AM. PRESIDENCY PROJECT (Gerhard Peters & John T. Woolley eds., 2017) , [] (“I am sure the American people will realize that I take this action with the greatest regret—and only because of the clear, unmistakable, and undisputed evidence that Governor Romney of Michigan and the local officials in Detroit have been unable to bring the situation under control. Law enforcement is a local matter. It is the responsibility of local officials and the Governors of the respective States. The Federal Government should not intervene—except in the most extraordinary circumstances.”). civil rights movement; in the midst of the L.A. riots, President George H.W. Bush stated in a public address that the unrest was “not about civil rights,” but, rather, “the brutality of a mob, pure and simple.”164 Such distinctions, it can be inferred, were publicly made in order to help legitimize federal military intervention before a watching public, which, perhaps, might have associated such intervention with the controversial proclamations of insurrection attendant to past enforcements of civil rights. For the sake of brevity, this section will discuss in detail those incidents that are either less well known and/or less commonly understood to be “race riots”: (a) violent clashes in “Bleeding Kansas,” (b) anti-Chinese expulsion campaigns in the Northwest, and (c) looting in St. Croix in the aftermath of Hurricane Hugo. a. Bleeding Kansas On February 11, 1856, President Franklin Pierce issued a proclamation ordering the dispersal of persons obstructing law and order in Kansas.165 The proclamation addressed the violent clashes between pro- and anti-slavery factions in a conflict known as “Bleeding Kansas,” which arose after the 1894 Kansas-Nebraska Act effectively nullified the Missouri Compromise of 1820 by authorizing settlers to vote on whether slavery would be allowed in the eponymous territories. In other words, the Kansas-Nebraska Act authorized settlers of the new territories to decide whether slavery would be sanctioned or prohibited by way of self-determination or, as then termed, ‘popular sovereignty’. Kansas, then, became a battleground. A pro-slavery faction included armed “Border Ruffians” from the adjacent slaveholding state of Missouri who flooded to the neighboring territory, voting illegally and engaging in vigilante violence to ensure that the terri164 Address to the Nation on the Civil Disturbances in Los Angeles, California, (May 1, 1992), in 1 PUB. PAPERS 685 (1992), [] (“What we saw last night and the night before in Los Angeles is not about civil rights. It’s not about the great cause of equality that all Americans must uphold. It’s not a message of protest. It’s been the brutality of a mob, pure and simple. And let me assure you: I will use whatever force is necessary to restore order. What is going on in L.A. must and will stop. As your President I guarantee you that this violence will end.”). A video version of the speech is also available online. Bush on Los Angeles Riots, HIST., []. 165 Franklin Pierce, Proclamation No. 66, Law and Order in the Territory of Kansas (Feb. 11, 1856), in AM. PRESIDENCY PROJECT (Gerhard Peters & John T. Woolley eds., 2017) , [https://perma .cc/MLE9-ACZC]. tory would not become a haven for escaped slaves. Their antagonists were abolitionists, including both humanitarian associations and armed guerrilla groups, the most notorious among them led by John Brown.166 Violence and hotly contested elections ensued, with the political arm of each faction establishing a separate legislature and constitution for the territory.167 As to Bleeding Kansas, federal military intervention was initially proposed in November 1855 by Kansas territorial governor Wilson Shannon, a pro-slavery sympathizer. In his capacity as commander-in-chief of the state militia, Shannon had called forth a posse comitatus of armed men from bordering Missouri to help suppress an insurrection of abolitionist groups assembling within the free state settlement of Lawrence; thereafter, the territorial governor had become overwhelmed by the ensuing unrest and requested that President Pierce dispatch federal troops to help restore order.168 The president had been hesitant to heed this call, wary of the public appearance of targeting citizens with the force of the federal military. Moreover, anticipating the 1856 presidential election, President Pierce had been politically invested in the “success” of popular sovereignty in the territory. In light of such concerns, the president authorized federal troops in the territory to serve under the control of Governor Shannon, and in strict adherence to the text of the presidential proclamation and relevant territorial law. In effect, then, federal law enforcement was implemented at the behest and pleasure of the pro-slavery territorial governor.169 166 See Pottawatomie Massacre, PBS: AM. EXPERIENCE, amex/brown/peopleevents/pande07.html []; see also People and Events: Bleeding Kansas, 1853-1861, supra note 158. 167 “In fact what has been done is of revolutionary character. It is avowedly so in motive and in aim as respects the local law of the Territory. It will become treasonable insurrection if it reach the length of organized resistance by force to the fundamental or any other Federal law and to the authority of the General Government. In such an event the path of duty for the Executive is plain. The Constitution requiring him to take care that the laws of the United States be faithfully executed, if they be opposed in the Territory of Kansas he may, and should, place at the disposal of the marshal any public force of the United States which happens to be within the jurisdiction, to be used as a portion of the posse comitatus; and if that do not suffice to maintain order, then he may call forth the militia of one or more States for that object, or employ for the same object any part of the land or naval force of the United States.” Franklin Pierce, Special Message (Jan. 24, 1856), in AM. PRESIDENCY PROJECT (Gerhard Peters & John T. Woolley eds., 2017) , []. 168 MICHAEL L. TATE, THE FRONTIER ARMY IN THE SETTLEMENT OF THE WEST 83-84 (1999). 169 Franklin Pierce, Proclamation No. 66, Law and Order in the Territory of Kansas Accordingly, among the more notorious displays of federal military intervention was the use of federal troops on July 4, 1856 to “disperse” the Topeka convention of a free-state legislative faction, which had been convened to contest and counteract the official pro-slavery territorial government.170 This deployment sparked controversy, with Northern abolitionist sympathizers criticizing the use of federal military force to uphold a pro-slavery government, and Southern pro-slavery supporters wary of the potential for federal troops to be increasingly used to suppress the incursions of border ruffians and other similarly-aligned factions. Moreover, in the end, President Pierce’s perceived bungling of the situation in the Kansas territory – in part, occasioned by his hesitancy and lack of leadership in failing to assert executive control over the federal military response therein – contributed to his losing the Democratic presidential primary.171 b. Anti-Chinese Expulsion President Grover Cleveland issued two presidential proclamations in response to the organized expulsion of Chinese laborers from Washington State in the mid-1880s. Amid an economic downturn that hit the Northwest Pacific region, Chinese residents—who had largely migrated to help build the region’s transcontinental railroad—became scapegoats for anxious white laborers who blamed them for driving down wages and, thereby, posing unfair competition for available work. A wave of propaganda campaigns by members and sympathizers of the Knights of Labor, a labor union, recommended expulsion of Chinese laborers, a tactic which gained significant public support. The first proclamation, issued on November 7, 1885, concerned the move by groups spurred by the Knights of Labor to threaten and intimidate Chinese residents into leaving Tacoma, Washington.172 On November 3 of that year—a few weeks after three Chinese laborers were murdered and masked men torched (Feb. 11, 1856), in AM. PRESIDENCY PROJECT (Gerhard Peters & John T. Woolley eds., 2017) , [https://perma .cc/MLE9-ACZC]. 170 The Missouri-Kansas Conflict 1854-1865: Topeka Legislature Dispersed, CIV. WAR ON WESTERN BORDER, []. 171 Gerhard Peters & John T. Woolley, Election of 1856, AM. PRESIDENCY PROJECT, [ 7QX8-RMPP]. 172 Grover Cleveland, Proclamation No. 274, Law and Order in the Territory of Washington (Nov. 7, 1885) , in AM. PRESIDENCY PROJECT (Gerhard Peters & John T. quarters where 37 Chinese workers resided—some 200 Chinese persons were ordered to pack, escorted by Knights of Labor supporters to a Northern Pacific railway, and forced to board a train to Portland, Oregon.173 President Cleveland’s proclamation, which was made at the request of the territorial governor of Washington, stated “that by reason of unlawful obstructions and combinations and the assemblage of evil-disposed persons” it had “become impracticable to enforce” the law.174 However, such “evil-disposed people,” having completed their mission, wondered what federal troops would do when they reached Tacoma: “ ‘What insurrection?’ ” asked perpetrators as they returned peaceably to their homes. . . . ‘How will they manage to put down a people who are not in rebellion?’ ‘Let them come,’ said the calm-minded. ‘We shall be glad to see them. It will give the boys a change.’ ”175 The president’s second proclamation, which was also made at the request of Washington’s territorial governor, similarly cited “evil-disposed persons” whose unlawful obstructions and combinations made it impracticable to enforce the law. Issued on February 9, 1886, the proclamation responded to a riot that erupted in Seattle after local members and sympathizers of the Knights of Labor attempted to expel Chinese laborers using the “Tacoma Method.”176 On February 7, such perpetrators had marauded through Seattle’s Chinese neighborhood and threatened residents to depart on a steamship leaving that afternoon. However, after plans were made to postpone the expulsion for the following day, the intended departure was further disrupted by violent clashes between Knight-supporters and white parties who sought to put a stop to the scheme. The ship ultimately departed with nearly 200 Chinese persons on board, but thereafter the opposing parties clashed when Knight-supporters tried to escort the remaining Chinese laborers off the dock to await the next ship, leaving five wounded and one person dead.177 On September 20, 1989, President George H.W. Bush issued a proclamation regarding domestic violence and disorder in the U.S. Virgin Island of St. Croix that was “endangering life and property and obstructing execution of the laws.”178 President Bush’s proclamation came after reports of looting and violence in St. Croix after Hurricane Hugo hit landfall three days earlier on September 17. The damage wrought by the hurricane severely impaired communications systems, making it difficult for Washington-based officials to confirm conditions on the island. Accordingly, much of the information relied upon was communicated by ham radio operators. Among circulated reports were incidents of racial violence enacted by Black residents against white residents and tourists, which were later determined to be exaggerated.179 While the precise nature of civil disorder in the aftermath of the hurricane remained unclear, it was undisputed that widespread looting had occurred,180 with local police, National Guard troops,181 and even prominent citizens 177 Schwantes, supra note 175, at 382. 178 Proclamation No. 6023, 54 Fed. Reg. 39,153 (Sept. 20, 1989), reprinted in 103 Stat. 3093 (1989). 179 Jeffrey Schmalz, 3 Weeks After Storm, St. Croix Still Needs Troops, N.Y. TIMES (Oct. 9, 1989), [] (“Federal officials say they believe reports that some blacks, who make up 70 percent of the island’s population, had shouted, ‘Whitey, go home!’ But they said that there was no indication that such encounters involved more than shouting, and the complaints were not being pursued.”). 180 James Gerstenzang & Ronald J. Ostrow, Washington Officials Paint Grim Picture of Chaos that Led to Approval of Troops, L.A. TIMES (Sept. 21, 1989), http://articles.latimes .com/1989-09-21/news/mn-910_1_virgin-islands [] (“While Hurricane Hugo’s destruction of communications links left details of the disorders unclear, one Interior Department official reported that every store on St. Croix appeared to have been looted.”). 181 Branigin, supra note 158 (“Most troubling for many people, however, was the apparent insouciance of the police and National Guard, some of whose members were looters, witnesses said. ‘I watched people looting while Gen. Moorehead was standing right out there directing traffic’ a couple of blocks away, one U.S. law-enforcement official said angrily. At one point, the official said, ‘a guy with a National Guard uniform told me to go into a store and ‘take what you need.’ Why? Because the National Guard was looting, too.’”). 2017] PARADOXES OF SOVEREIGNTY AND CITIZENSHIP having reportedly participated.182 News articles written at the time of the domestic disturbance cited reports of hundreds of inmates who broke out of a hurricanedamaged prison, “looters by the thousands” and “[f]leeing tourists [telling] of chaos, long and heavy automatic weapons fire, robbers with machetes and prisoners—including murderers—on the loose.”183 Other sources quoted at the time reported that the looting was not solely opportunistic, but also need-oriented, engaged in by residents who were running out of food and other necessary provisions.184 The ensuing unrest, in any event, occurred against a backdrop of racial tensions and socio-economic disparities between the island’s resident population and seasonal tourists. The presidential proclamation was silent on whether it had been made at the request of the territorial governor of the U.S. Virgin Islands, and news reports provide conflicting accounts. While spokespersons for President Bush stated that the proclamation was made at the request of Virgin Islands territorial governor Alexander Farrelly, Farrelly responded that he had not made any such request.185 In any event, on September 21, approximately 1,100 federal troops were deployed to the island to aid the Virgin Islands National Guard and other local law enforcement. As for indicated perceptions of legitimacy, some territorial officials criticized the federal deployment, which they argued diverted necessary resources from relief missions to security 182 Id. (“The breakdown in order after the hurricane also has prompted much soulsearching about the behavior of Crucians, as people of St. Croix are known, since the looters included not only poor residents of public housing projects but also prominent citizens. The U.S. attorney’s office has charged 15 such persons with offenses ranging from grand larceny to possession of stolen goods. They include a former St. Croix senator and gubernatorial candidate who was police commander in Frederiksted at the time of his arrest, the vice president of a bank, a Christiansted civic leader and a restaurant owner.”). 183 Bob Secter & Richard E. Meyer, St. Croix Chaos Subsides as U.S. Troops Arrive, L.A. TIMES (Sept. 22, 1989), []. 184 Id. (“Some islanders have admitted that they joined in the looting because they were afraid that if they didn’t they would have nothing to eat.”). 185 Gerstenzang & Ostrow, supra note 180 (“Farrelly said Wednesday night that he had not asked for the troops Bush authorized.”); Marita Hernandez & Richard E. Meyer, U.S. Orders in Troops to Quell Island Violence: St. Croix Looting and Lawlessness in Wake of Hurricane Damage Spurs Authorization by Bush, L.A. TIMES (Sept. 21, 1989), [https://per] (“Presidential spokesman Marlin Fitzwater said Bush authorized deployment after receiving a request for help from Virgin Islands Gov. Alexander Farrelly. In Christiansted, the governor said he had not asked for federal help to restore order. But Holland Redfield, a Virgin Islands territorial senator and legislative liaison to the White House, said he asked for assistance from Washington.”). operations. Territorial Governor Farrelly, for one, downplayed the level of disorder on the ground.186 Further, non-voting House of Representatives member Ron de Lugo criticized the media reportage of the disruption on the island, “denounc[ing] the television networks, Time Magazine, The New York Times, The Wall Street Journal, The Miami Herald, The Chicago Tribune and other news organization [sic], accusing them of concentrating on the looting and exaggerating the extent of civil disorder.”187 C. Right Intention When contemplating the legitimacy of humanitarian intervention abroad, moral philosophers and critics of foreign policy, in particular, have considered whether—independent of the underlying circumstance deemed a “just cause”—such intervention was made with the “right intention.” In other words, such scholars have considered whether the “just cause” was merely a pretext for armed intervention, which, accordingly, was not undertaken solely for humanitarian purposes.188 Indeed, in the international context, it is understood that states do not always engage in humanitarian intervention for purely humanitarian purposes. Humanitarian intervention, for instance, can be partly motivated by the pursuit of national interests that do not encompass the intent to save lives and protect human rights.189 Given the understanding that humanitarian intervention is often prompted by such mixed motives, evaluations of right intention have tended to adopt an empirical approach that considers when such intervention has, and has not, been undertaken in light of underlying circumstances that would seem to constitute a just cause. Such evaluations, then, have adopted an inductive analysis to consider when humanitarian intervention appears to have been prompted by non-humanitarian national interests, on the one 186 Dennis Hevesi, Bush Dispatches Troops to Island in Storm’s Wake, N.Y. TIMES (Sept. 21, 1989), [] (“Governor Farrelly of the Virgin Islands, speaking from his office in Charlotte Amalie on St. Thomas, about 30 miles north of St. Croix, acknowledged, ‘There is some looting, no doubt about that. ‘But,’ he added, ‘there is no near state of anarchy. And I should know. I’m in the streets every day and I’m the Governor of this territory.’”). 187 Schmalz, supra note 179. 188 See, e.g., Gareth Evans & Mohamed Sahnoun, The Responsibility to Protect, FOREIGN AFFAIRS, Nov./Dec. 2002, at 100, 104, 109 (describing the relationship between right intention and national interest in modern humanitarian intervention). 189 ANDREAS KRIEG, MOTIVATIONS FOR HUMANITARIAN INTERVENTION: THEORETICAL AND EMPIRICAL CONSIDERATIONS 37-58 (2013) (ebook). hand, or, on the other hand, has not been undertaken due to the lack of both national self-interest and political will. It could be posited that considerations of right intention at play in the international context are not suitable for the domestic context. At home, one would imagine, the federal government’s response in protecting its own citizens in a crisis scenario would not only be politically uncontroversial, but would also be fairly uniform in tactical application, in line with the singular and incontrovertible motive of protecting any and all citizens in a given emergency. However, just as an empirical analysis of humanitarian intervention (e.g., in Bosnia, Kosovo, and Somalia) and its absence (e.g., in Rwanda) supports an inductive evaluation of the international community’s political priorities, relative indifference, and blind spots, a similar analysis of the nature of federal intervention at home, as discussed in more detail below, not only reveals a curious trend, but also suggests a disparity as to which crises warrant certain kinds of responses. This section considers the ‘right intention’ of domestic federal military intervention through a similar inductive analysis—here, with a select consideration of the application of the Stafford Act to govern the federal response to incidents that, on their face, could constitute instances of domestic violence or other obstruction of federal law or the enjoyment of constitutional rights that would warrant the invocation of the Insurrection Act. Such an analysis, albeit cursory and speculative, is nonetheless useful in light of the stated legislative purposes of the Stafford Act and the Insurrection Act, respectively, which frame the nature of federal military intervention. Again, while the Insurrection Act authorizes the deployment of federal troops with law enforcement powers, the Stafford Act does not—a key distinction that is evident in the text of each statute and, further, is translated in the rules of engagement established under the authority of one or both acts. As for the legislative text itself, while the Insurrection Act authorizes the deployment of federal troops to “suppress insurrection” and otherwise quell “domestic violence,”190 such troops may be deployed under the Stafford Act in accordance with the ultimate purposes to “save lives” and “alleviate . . . suffering.”191 While such text does not necessarily dictate specific behaviors of every federal military responder on the ground, the legislative authorization does frame the overall mission, 190 10 U.S.C. § 333 (2008). 191 42 U.S.C. § 5121(b) (2007). casting intervention as the use of military force to restore law and order, on the one hand, or to provide emergency relief in order to save lives, on the other. The following subsection briefly considers select incidents of arguably insurrectionary character that were solely deemed either natural or man-made disasters under the Stafford Act. This subsection, moreover, is not intended to provide evidence per se of selective federal law enforcement, but to raise for discussion the potential for such selective enforcement and the implications in light of the fraught history of race and sovereignty of the several states. 1. Selective Enforcement Instances of domestic violence in the United States that were not proclaimed insurrections are numerous; this article does not consider them all. Rather, this inquiry of right intention, similar to that offered by commentators on and critics of humanitarian intervention abroad, is episodic and speculative, intended to raise issues for further discussion rather than to make definitive conclusions. Accordingly, while the Stafford Act, passed in 1988, has applied to incidents that arose over a far shorter span of time than the Insurrection Act of 1807, it is nonetheless, for the purposes of this article, a useful benchmark for considering the potential for selective federal law enforcement. Though the Stafford Act has been generally applied to authorize federal response to natural disasters—such as hurricanes, floods, and flash fires—there are only three instances since the legislation was enacted in which it was applied to respond to civil disturbances, specifically, three acts of domestic terrorism: the Oklahoma City Bombing, the 1993 attack on the World Trade Center, and the events of September 11, 2001. On April 19, 1995, a car bomb detonated and destroyed the Alfred P. Murrah Federal Building in Oklahoma City, killing 169 people, including nineteen children, and injuring 500.192 On the same day, President Bill Clinton made a unilateral declaration of “emergency” under the Stafford Act.193 The next day, on April 20, 192 April 19, 1995 — Timothy McVeigh Bombs Oklahoma City Building, N.Y. TIMES: THE LEARNING NETWORK (Apr. 19, 2002, 4:02 AM), 2012/04/19/april-19-1995-timothy-mcveigh-bombs-oklahoma-city-building [https://]. 193 William J. Clinton, Remarks on the Bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma (Apr. 19, 1995), in AM. PRESIDENCY PROJECT (Gerhard Peters & John T. Woolley eds., 2017) , 1995, the Department of the Army transmitted an executive order for military support to civil authorities in Oklahoma City, citing the Stafford Act as legal authority. As for the World Trade Center Attacks, President Bill Clinton declared a “major disaster” after a car bomb was detonated on February 26, 1993 in the garage of the World Trade Center, killing six people and injuring about 1,000 others.194 In response to the events of September 11, 2001, President George W. Bush declared a “major disaster.”195 There was no proclamation of insurrection in relation to these attacks; rather, on that date, President Bush further declared a national emergency under the National Emergencies Act,196 pursuant to which he called upon state governors to activate National Guard troops to patrol airports, train stations, and other transportation depots under Title 32, thereby federally compensating such troops for any law enforcement activities they engaged in under state command. Accordingly, patrolling National Guard troops, though a regular presence in the months following the attacks, were not engaged in federal law enforcement. The above incidents are noteworthy comparators in that they involved acts of grave domestic violence that—while they elicited a robust security response—were not deemed “insurrections” under the Insurrection Act and, thereby, were not subject to federal law enforcement pursuant to the legislation. However, as will be illusindex.php?pid=51239 []. Prior to President Clinton’s declaration, the Department of Defense had already provided assistance to state and local authorities pursuant to its “immediate action authority” to respond to emergencies in order to “save lives, [to] prevent human suffering, or [to] mitigate great property damage” when time does not permit for necessary prior approvals. See Jim Winthrop, The Oklahoma City Bombing: Immediate Response Authority and Other Military Assistance to Civil Authority (MACA), ARMY LAW., July 1997, at 1, 4. Such assistance included the dispatch of explosive ordnance personnel, two bomb detection dog teams, and a 66-person rescue team. Thereafter, the primary efforts of the Department of Defense included providing airlift assets for FEMA’s search and rescue teams. Id. at 1, 1 n.5. 194 William J. Clinton, The President’s Radio Address (Feb. 27, 1993), in AM. PRESIDENCY PROJECT (Gerhard Peters & John T. Woolley eds., 2017) , []; see also Press Release, President Declares Disasters in Nebraska and New York (Apr. 2, 1993), [] (“President Clinton today declared major disasters exist in both the state of New York following the Feb. 26 bombing of the World Trade Center and in Nebraska as a result of severe March flooding and ice jams.”). 195 Bush Declares Major Disaster in New York, USA TODAY (Sept. 11, 2001, 10:22 PM), []. 196 Proclamation No. 7463, 66 Fed. Reg. 48,199 (Sept. 14, 2001). trated with the case of Hurricane Andrew, the disparity is not merely semantic, but can translate into differences in the permissible use of force by federal troops on the ground. Hurricane Andrew struck Florida in August 1992, especially devastating south Dade County, a suburban part of the Miami metropolitan area where the population was about 50% Hispanic residents, 30% nonHispanic white residents, and 19% Black residents.197 President George H.W. Bush made a proclamation of “major disaster” pursuant to the Stafford Act on August 24, 1992, the same day the hurricane hit landfall in South Florida with winds at an estimated 168 miles per hour.198 There were numerous reports of looting in the days after the hurricane hit. Though official statistics on the extent of the looting remain uncertain, news stories from that time highlighted an atmosphere pervaded by fear and perceived lawlessness—with reports that signs painted on homes and other buildings read “You loot, we shoot” or “Looters will lose body parts,” and at least one man presumed to be a looter having been shot dead by a South Florida resident.199 At the height of the crisis, then-governor of Florida, Lawton Chiles, dispatched approximately 5000 of the state’s National Guard troops to secure areas reportedly besieged by looting, including to guard the Cutler Ridge Mall.200 In response to the governor’s request for additional activeduty troops to Florida without, notably, making a proclamation of insurrection in order to confer law enforcement powers to such troops, federal troops dispatched to the area pursuant to the Stafford Act were armed with weaponry that lacked ammunition. As reported in The Miami Herald, members of the 82nd Airborne Division—who were armed with M-16 rifles but had not been is197 RESEARCH & PLANNING SECTION, MIAMI DEP’T OF PLANNING & ZONING, DEMOGRAPHIC PROFILE MIAMI-DADE COUNTY, FLORIDA 1960-2000 10 (2003). 198 George H.W. Bush, Remarks on Disaster Assistance for Florida Following Hurricane Andrew (Aug. 24, 1992), in AM. PRESIDENCY PROJECT (Gerhard Peters & John T. Woolley eds., 2017) , []. For a discussion of the wind speeds, see Mark Silva et al., Destruction at Dawn: What Hurricane Andrew Did to South Florida 24 Years Ago, MIAMI HERALD (Aug. 24, 2015, 9:09 AM), weather/hurricane/article32006499.html []. 199 See, e.g., Gary Nelson, Hurricane Andrew Remembered: 20 Years Later, CBS MIAMI (Aug. 24, 2012, 7:19 PM), []; Silva et al., supra note 198; Deborah Sontag, After the Storm; The Days of a Scavenger Amid the Rubble, N.Y. TIMES (Sept. 1, 1992), []; 200 Ardy Friedberg & Kevin Davis, Looting Heavy Despite Police Presence, SUN SENTINEL (Aug. 26, 1992), looters-florida-national-guard-troopers []. sued ammunition—were confronted by an armed gang in South Dade County; though the confrontation was diffused, a captain of the division recalling the incident noted that “[o]ne of these times, somebody’s going to call our bluff, and someone’ll get shot . . . .”201 Again, that the aforementioned incidents were not proclaimed insurrections is not evidence per se of selective federal law enforcement. However, in light of “insurrections” and would-be “insurrections” that are similarly situated—namely Hurricane Hugo and Hurricane Katrina—and acts of domestic terrorism that pose arguably graver security risks, these incidents raise for serious discussion the potential for selective federal law enforcement and at least illustrate the fraught tension between race and the sovereignty of the several states. II. PARADOXES OF SOVEREIGNTY AND CITIZENSHIP Part I of this article applied the conceptual framework developed to guide humanitarian intervention abroad to domestic federal military intervention authorized under the Insurrection Act— or, as termed herein, humanitarian intervention at home. As discussed in detail above, executive decision-making regarding domestic federal military intervention raises similar questions of legal authority, just cause, and right intention, and, moreover, illuminates the fraught relationship between race and federalism. Again, the ostensibly clear legal authority for the executive to deploy federal troops with law enforcement powers is, in practice, vague— rendering “insurrection” tautological. So, as a just cause is, in effect, what the executive proclaims one to be, an overview of past incidents deemed “insurrections” helps define the otherwise slippery term, revealing that such crises have tended to either involve the violation of civil rights or so-called ‘race riots’. Furthermore, the application of this conceptual framework subjects the purported humanitarian intention behind such federal military intervention to a deductive inquiry, in that, when considering arguably similarly situated incidents that were not all deemed “insurrections,” the specter of selective enforcement is raised. In other words, the empirical association between “insurrection” and race—in particular, the civil rights of, or civil disturbances involving, Black citizens— might, as with Hurricane Katrina, reframe a mission to provide emergency relief (i.e., humanitarian aid) as one to restore law and order (i.e., humanitarian intervention). Part II of this article further develops this implicit analogy between humanitarian intervention abroad and federal military intervention at home to speculate on two paradoxes that emerge from this conceptual exercise—one of sovereignty and another of citizenship. The definition of a paradox, of course, is a statement that is seemingly contradictory or opposed to common sense and, yet, is perhaps true. As for the sovereignty of the several states, while it would appear that federal military intervention during a crisis should be uncontroversial given the clear legal authority to intervene, the political fallout of doing such renders state sovereignty far less penetrable than would be expected—akin, perhaps, to that of the sovereignty of a foreign state. As to citizenship, while the federal government’s responsibility to protect all citizens within U.S. borders is unequivocal and expected to be fulfilled uniformly, an overview of the nature of federal military intervention in response to a given domestic crisis illustrates an ongoing contest over the incorporation of Black citizens into the nation-state, the legacy of which might result in disparate regimes of federal intervention where Black citizens are concerned, with the primary intention to restore law and order trumping that to save lives. A. Sovereignty of the Several States The paradox of sovereignty, illustrated in Part I, is that— where usurping police powers are concerned—the potential political fallout of violating the sovereignty of the several states appears to pose as much as, or perhaps more of, a constraint on federal military intervention at home as it does on humanitarian intervention abroad. This statement, seemingly absurd yet well-founded, may explain, in the case of Hurricane Katrina, the slow provision of federal assistance. This statement, moreover, poses an answer to Soledad O’Brien’s question as to why, apparently, such federal assistance was swiftly provided to tsunami victims in Indonesia relative to Louisiana.202 Such hesitancy, as discussed above, appears to arise when military intervention is framed under the Insurrection Act—which authorizes federal troops to engage in law enforcement—rather than solely in accordance with the Stafford Act—where, in line with Posse Comitatus restrictions, any federal troops deployed thereunder are not authorized to engage in law enforcement activity. The nature of this hesitancy, as explored above is two-fold: arising, on 202 See note 10 and accompanying text supra. the one hand, out of a longstanding and perhaps race-neutral aversion (expressed in The Federalist Papers and otherwise) to the exercise of federal military power within the several states, and, on the other hand, out of a fraught, racial history whereby, in practice, federal law enforcement was repeatedly authorized to either enforce civil rights of Black citizens or suppress so-called ‘race riots’. As for the apparently race-neutral source of this hesitancy, an overview of past invocations of the Insurrection Act reveals a will on the part of the state governor of a given state to appear to his or her constituency to possess control over the police powers of the state. Moreover, given such politically motivated will, this overview also reveals a reluctance on the part of the executive to usurp such police powers from the state governor without having been requested to do so. Such hesitancy, in short, appears to arise, in part, out of classic federalist concerns. As raised in The Federalist Papers, even the establishment of federal troops sparked fears over their use to overpower state governments and forcibly restrain individual liberty. For instance, during Radical Reconstruction, the aforementioned “spectacle of soldiers ‘marching’ ” into a New Orleans assembly chamber and “ ‘expelling members at the point of bayonet’ ” aroused sufficient aversion among then-Republican congressmen to set in motion the withdrawal of federal troops from former Confederate states.203 State governors who resisted the court-ordered desegregation of public schools employed fiery rhetoric representing the use of federal troops to enforce civil rights as an unjust encroachment of federal power. The deployment of such troops was referred to as “military occupation” in Arkansas, as a move to “invade Alabama” and, according to the governor of Mississippi, an employment of “naked and arbitrary power” denying a “right of self-determination in the conduct of the affairs of our sovereign state.”204 Further, the executive aversion to violating the sovereignty of Alabama led President Johnson to reframe ultimate federal military intervention as a response to a ‘local invitation’ by Governor Wallace rather than a unilateral proclamation of insurrection. Specifically, after Governor Wallace declined to deploy the National Guard to enforce the rights of protestors subjected to violence by state troopers, President Johnson reframed his later proclamation as having been made on account of an ‘unwillingness’ of the state to intervene that was tantamount to a request.205 Even where federal military intervention was at the request of a given state governor—as in the case of ‘race riots’—in some instances, the executive was at least rhetorically tentative in heeding this request. In the case of Bleeding Kansas, President Pierce was hesitant to heed the call of territorial governor Shannon to dispatch federal troops to restore law and order, wary of the public appearance of targeting citizens with federal military force.206 As for the Detroit riots of 1967, after state governor George Romney requested a proclamation of insurrection, President Johnson, for one, was reluctant to domestically deploy federal troops and, further, made clear in the proclamation’s written text that “the law enforcement resources available to the City and State, including the National Guard” were unable to restore law and order, indicating that federal military intervention as a ‘last resort’.207 B. Disparate Responses to U.S. Citizens The paradox of citizenship illustrated in this article is threefold. For one, following from the paradox of sovereignty, an overview of the past proclamations of “insurrection” and their attendant controversy reveals that—where federal military intervention has been contemplated—it could, counter-intuitively, be more efficient for the federal government to respond to crises abroad than to crises at home. As discussed in detail above, U.S. presidents have generally shown reluctance at employing the exceptional power to domestically deploy federal troops. Moreover, even where such deployment has been at the request of the relevant state governor, U.S. presidents have generally been prudent to inform the public that this exceptional authority was not exercised unilaterally, and, in some cases, reassure the public that such intervention was not made to enforce ‘civil rights’. Second, the uncovered pattern of past “insurrections”— namely, civil rights ‘crises’ and so-called ‘race riots’—evidences the ongoing contest over the incorporation of Black persons into the body politic, and of such persons as, paradoxically, citizens consistently struggling to be afforded and enjoy the full benefit of citizenship.208 Indeed, a review of the invocation of the Insurrection Act 205 See supra note 140 and accompanying text. 206 See Part I.B.2.a. supra. 207 Proclamation No. 3795, 32 Fed. Reg. 10,905 (July 26, 1967). 208 DANIEL SIGWARD, FACING HISTORY AND OURSELVES, THE RECONSTRUCTION ERA AND THE FRAGILITY OF DEMOCRACY 114 (2015), reveals a marked trend as to what past presidents have deemed just causes—that is, on the one hand, the enforcement of civil rights of Black and other non-white persons in a given state (e.g., in Washington state to halt anti-Chinese expulsion campaigns; in Southern states during the Reconstruction Era; in Alabama, Arkansas, and Mississippi to desegregate public schools, as well as to enforce the rights of protesters marching from Selma to Montgomery), and, on the other hand, the suppression of ‘race riots’ that erupted in states unable to restore law and order (e.g., in “Bleeding Kansas” prior to the Civil War; the Detroit riots of 1943 and 1967; the unrest in cities across the United States after Martin Luther King, Jr. was assassinated; and the Los Angeles riots). In light of this history, the epigraph that begins this article makes sense, rendering domestic federal military intervention particularly fraught where Black citizens are concerned. Again, regarding Hurricane Katrina, President Bush hesitated as to whether federal troops should have been deployed with the primary mission to suppress an insurrection or to save lives. The events of Hurricane Katrina, then, were indeterminate, representing at the same time humanitarian crisis and ‘race riot’, an illegibility that held an executive decision in abeyance for five crucial days. Just as mostlyBlack evacuees in New Orleans were, at once, resident and “refugee,” stranded in a “third world country”209 at home, they were also, at the same time, victims and perpetrators—impotent insurgents, internally-displaced insurrectionists, relief-seeking rioters. Third—given the disparate invocation of the Insurrection Act, on the one hand, and application of the Stafford Act, on the other, to respond to similarly situated internal crises—this legacy may result in a disparate response to crisis where Black citizens are concerned, with the primary intention to restore law and order trumping that to save lives. The key distinction between the Insurrection Act and the Stafford Act—the presence or absence of lawenforcement authority of federal troops—is implicit in the stated purpose of each statute and indicative of the respective nature of federal military intervention thereunder. Whereas federal troops are deployed under the Insurrection Act to suppress “insurrections,” “rebellions” and “unlawful obstructions,” federal assistance (military and otherwise), is provided under the Stafford Act simply default/files/publications/The_Reconstruction_Era_and_The_Fragility_of_Democra cy_0.pdf []. 209 Carr, supra note 5; Treaster & Sontag, supra note 6. in order to “save lives” and “alleviate suffering.”210 In other words, while the Insurrection Act authorizes the use of military force to achieve humanitarian objectives, both the end and the means of the Stafford Act are humanitarian in nature. Again, while the Insurrection Act presumes federal military intervention of a combative nature, the Stafford Act presumes federal intervention that, whether military or non-military, is, by contrast, non-combative. This distinction is important because the intention of federal disaster response can reframe a mission from one to search-and-rescue to shoot-to-kill. In light of the above concern, a survey of incidents that have been deemed “insurrections” begs questions about certain incidents that have not. For instance, the bombings of a federal building in Oklahoma City and the World Trade Center in 1992, as well as the events of September 11, 2001—each domestic acts of terrorism—were not proclaimed “insurrections.” Rather, these attacks were solely interpreted as “man-made” disasters within the meaning of the Stafford Act, and, thus, any federal military dispatched thereunder lacked law-enforcement authority.211 Further, the Stafford Act was solely applied to coordinate the federal response to Hurricane Andrew in South Florida, where news media reported rampant looting in South Dade County—an area in which approximately 70% of the residents were white or Hispanic according to corresponding data.212 By contrast, the Insurrection Act was invoked to deploy federal troops to St. Croix amid the devastation of Hurricane Hugo in response to media reports of looters menacing tourist enclaves.213 St. Croix is among the U.S. Virgin Islands, an unincorporated territory of the United States where approximately 85% of the residents were Black according to corresponding census data. To the extent that an “insurrection” is in the eye of the beholder, such incidents raise for serious discussion the apparent racial implications of federal military enforcement. CONCLUSION “Legal interpretive acts signal and occasion the imposition of violence upon others[,]” wrote Robert M. Cover in Violence and the Word.214 Interpretations of the law, Cover further stated, results in 210 See supra notes 190-91 and accompanying text. 211 See supra notes 192-96 and accompanying text. 212 See supra notes 197-201 and accompanying text. 213 See supra notes 178-87 and accompanying text. 214 Robert M. Cover, Violence and the Word, in NARRATIVE, VIOLENCE, AND THE LAW: THE ESSAYS OF ROBERT COVER 203, 203 (Martha Minow et al. eds., 1993). the sanctioned loss of freedom, property, one’s children and even one’s life. “When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence.”215 As discussed in this article, an “insurrection” is a state-authorized utterance that results in the deployment of federal troops to “restore law and order”—a mission that both implies and surely is expected to result in violence. This particular imposition of violence has been controversial, as it represents a threatening exercise of federal power that was formally constrained in this country’s founding documents. The hesitancy to proclaim an insurrection discussed in this article, in light of humanitarian intervention abroad, illustrates a paradox of sovereignty: the enigmatic situation where the sovereignty of the several states appears to be given more respect relative to the sovereignty of foreign states. Furthermore, despite this hesitancy to proclaim an insurrection, the proclamation has been made time and again in order to either enforce civil rights or suppress race riots, suggesting a paradox of citizenship – i.e., illustrating the ongoing contest over the incorporation of Black citizens into the American body politic, as “citizens” who are not afforded the full enjoyment of citizenship. While Hurricane Katrina was a point of entry into this discussion—bringing to the fore, among other things, the question of selective enforcement (i.e., racial profiling) in the executive decision to view hurricane victims as persons with lives to be saved or insurgents disrupting law and order, more recent events further raise the question of disparate responses to internal disturbances. Juxtaposing the responses to Black protesters in Ferguson, Missouri and Baltimore, Maryland, on the one hand, and the armed occupation of the Oregon wildlife refuge by white militants, on the other hand, shows the stark contrast in the use of force or, as Cover put it, “the imposition of violence” on “insurrectionary” actors of racial difference. Finally, in this new paradigm under a Trump presidency, Cover’s words are even more resonant. To the extent a president is uninhibited by traditional and historical constraints on the exercise of the Insurrection Act, the heart and mind of the particular interpreter—i.e., the one who is proclaiming the “insurrection”— becomes less of a speculative side point and more of a legal priority. Given that President Trump has promised to be the “law and order” president who will, for example, “send in the Feds!” to Chi CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452 15 See infra Section I.A.2. on the Insurrection Act; see also Timothy E . Steigelman, Note , New Model for Disaster Relief: A Solution to the Posse Comitatus Conundrum , 57 NAVAL L. REV . 105 , 113 - 16 ( 2009 ). 16 See infra Section I.B. on Just Cause. 38 See generally Jane Stromseth, Rethinking Humanitarian Intervention: The Case for In- LEMMAS 232 , 242 (J.L. Holzgrefe & Robert O. Keohane eds., 2003 ). 39 Compare U.N. Charter arts. 41 -42 with U. N. Charter art. 2, ¶¶ 4 , 7 . 40 U.N. Charter art. 2 , ¶ 7 . 41 U.N. Charter art. 2 , ¶ 4 . 42 See, e.g., Bartram S. Brown, Humanitarian Intervention at a Crossroads , 41 WM. & MARY L. REV . 1683 ( 2000 ); Christopher Greenwood, Humanitarian Intervention: The Case of Kosovo , 2002 FINNISH Y.B. INT'L L . 141 , manitarian_intervention_the_case_of_Kosovo(LSERO) .pdf [ 8BXF] . 43 United Nations Convention on the Prevention and Punishment of the Crime of Genocide , Dec. 9 , 1948 , 78 U.N.T.S. 277 , 280 , tion/unts/volume%2078/volume-78 - i-1021 -english .pdf [ KF4S] . 44 Compare MADELEINE K. ALBRIGHT & RICHARD S. WILLIAMSON , THE UNITED STATES AND R2P: FROM WORDS TO ACTION ( 2013 ), 13- The-United-States- and-R2P.pdf [], with STEVEN PROTECT” DOCTRINE , ( 2008 ), 3UHV-SYTH]. 45 THE FEDERALIST PAPERS (Clinton Rossiter ed ., 1961 ). 46 Posse Comitatus Act of 1878 , ch. 263 , § 15 , 20 Stat. 145 , 152 (current version at 18 U.S.C. § 1385 ( 1994 )). Woolley eds., 2017 ), 71275 []. 173 See GWEN WHITING , WASH. STATE HISTORY MUSEUM, THE CHINESE EXPULSION ACT OF 1882 , []; see also David W. Chen, Picturing the Remnants of Anti- Chinese Violence , N.Y. TIMES: LENS (Aug . 13, 2012 ), 2012 /08/13/remnants-of -anti-chinese-violence [https://perma .cc/FPJ2-JTXQ]. 174 Grover Cleveland , Proclamation No. 274 , Law and Order in the Territory of Washington (Nov. 7, 1885 ), in AM. PRESIDENCY PROJECT (Gerhard Peters & John T. Woolley eds., 2017 ), 71275 []. 175 Carlos A. Schwantes, Protest in a Promised Land: Unemployment, Disinheritance, and the Origin of Labor Militancy in the Pacific Northwest , 1885 - 1886 , 13 WESTERN HIST . Q., 373 , 383 ( 1982 ) (noting that a grand jury issued indictments pursuant to the Ku Klux Klan Act of 1871 , which resulted in no convictions). 176 Grover Cleveland , Proclamation No. 275 , Intent to Use Force Against Unlawful Assemblages in the Territory of Washington (Feb. 9 , 1886 ), in AM. PRESIDENCY PRO- JECT (Gerhard Peters & John T. Woolley eds., 2017 ), http://www.presidency.ucsb .edu/ws/index.php?pid=71415 [].

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Hawa K. Allan. Paradoxes of Sovereignty and Citizenship: Humanitarian Intervention at Home, City University of New York Law Review, 2017,