Emergency Federalism: Calling on the States in Perilous Times

The attacks of September 11 prompted a historic debate concerning terrorism and domestic emergency response. This ongoing dialogue has driven policy decisions touching upon both liberty and security concerns. Yet despite the enormous effort that has gone into the national response, the role of the sovereign states, and with it federalism, has received comparatively little attention. This Article explores the relevance of federalism within the context of the “War on Terror” and in the aftermath of Hurricane Katrina. Acknowledging that theories of federalism developed elsewhere are insufficient, he outlines a doctrine of ’emergency federalism.’ The author argues that the Framers consciously retained federalism in times of threat and conflict analogous to today’s challenges. He finds that, relative to the national authority, the scope of states’ interests wax and wane depending upon the severity of the threat and the territorial context, though in no instance are they completely extinguished. Giuliano shows that this design reflects a judgment, written into the Constitution, that emergency federalism enhances both security and liberty relative to a more unilateral approach. He then illustrates how the experience of September 11, the national response since that date, and Hurricane Katrina together indicate that increasing the states’ role should, in practice, promote both security and liberty. Having described emergency federalism and identified its potential advantages, the Article concludes by suggesting possible legal and policy reforms, including those based on the conclusion that the National Guard is constitutionally. unstable as currently constituted.