[JURIST] The Washington Post reported Sunday that Bush administration officials sent a draft legal memorandum to Louisiana Governor Kathleen Blanco just before midnight Friday asking her to request a federal takeover of the evacuation of New Orleans, according to a source within the state's emergency operations center. Administration officials had been seeking direct unified control over local police and National Guard units that would otherwise be under the Governor's jurisdiction. According to a senior Bush official, the President has the power (by state request or unilaterally) to federalize National Guard troops and put down civil unrest under the Insurrection Act [text; 2001 Congressional testimony on potential legal and other problems with federalizing the Guard during state emergencies, PDF]. Suspecting a political motive, however, state officials refused to make the request, recognizing its implications for state authority over a state emergency and arguing it would be analogous to a federal declaration of martial law, a legal condition that both the US military [JURIST report] and state authorities [JURIST report] had previously been at public pains to avoid. The next day Blanco shored up her authority over the situation by setting up a state relief fund and calling in former Clinton administration FEMA director James Lee Witt [professional profile] to advise on the state relief effort. Federal officials all the way up to President have suggested that state and local governments were overwhelmed by the scope of the disaster and were slow to respond, but that they themselves could not have moved more quickly because, in the words of Homeland Secutity Secretary Michael Chertoff, "our constitutional system really places the primary authority in each state with the governor." The Post quotes its state source as saying "Quite frankly, if they'd been able to pull off taking it away from the locals, they then could have blamed everything on the locals," The Washington Post has more.
3:25 PM ET - In an article posted on its website Sunday, Newsweek magazine notes that legal wrangling was also going on within the Bush administration as the situation in New Orleans deteriorated:
President Bush could have "federalized" the National Guard in an instant. That's what his father, President George H.W. Bush, did after the Los Angeles riots in 1992.... But after Katrina, a strange paralysis set in. For days, Bush's top advisers argued over legal niceties about who was in charge, according to three White House officials who declined to be identified because of the sensitivity of the negotiations. Beginning early in the week, Justice Department lawyers presented arguments for federalizing the Guard, but Defense Department lawyers fretted about untrained 19-year-olds trying to enforce local laws, according to a senior law-enforcement official who requested anonymity citing the delicate nature of the discussions.