The nation’s governors and National Guard leaders oppose a provision inserted into the fiscal 2007 defense authorization bill last year redefining when the president can take command of the National Guard during domestic emergencies. No member of the House or Senate is claiming responsibility for the provision, which amends the Insurrection Act of 1807.

Governors are in an uproar because the little-noticed provision was inserted into the authorization bill (PL 109-364) without consulting governors, adjutant generals or law enforcement officials across the country.

As result, all of the nation’s governors are in support of a bill (S 513) introduced Feb. 7 by Sen. Patrick J. Leahy, D-Vt., that would repeal the language inserted into the defense authorization bill.

“This is a serious problem,” Gov. Michael F. Easley, D-N.C., told the Senate Judiciary Committee on Tuesday. Easley said the new language in the defense authorization measure unnecessarily expands the president’s authority to call up the National Guard and undermines the governors’ abilities to do their jobs. “This should not be a tug of war between the governors and the president,” said Easley, who is the NGA co-lead on National Guard.

But a tug-of-war it’s become.

According to a draft letter from the Department of Defense’s general counsel, obtained by Congressional Quarterly, the department opposes Leahy’s Insurrection Act Rider appeal bill. The draft letter is from William J. Haynes II, Defense general counsel, and it’s addressed to Senate Armed Services Chairman Carl Levin, D-Mich.

“If this legislation is enacted, it would affect the Department detrimentally by revoking a congressionally granted authority for the President to direct the Secretary of Defense to preserve life and property and by limiting the president’s authority to call upon the Reserves to restore order, repel invasions or suppress rebellions,” Haynes wrote in th draft letter.

While there are only eight cosponsors of Leahy’s bill, there has been no apparent opposition, one Senate aide said.

The administration’s alleged insistence that the president’s authority to command the guard be clarified and expanded came after much debate over the response to Hurricane Katrina in 2005.

Leahy, Judiciary Committee chairman, said the way the provision was slipped into the defense authorization bill is not appropriate. “It’s not just bad process, it’s bad policy,” he said. Christopher S. Bond, R-Mo., said the new provision is “ill-conceived, unnecessary and dumb.”

In addition some say the president had all the authority he needed to command the guard during Katrina, and the new language wasn’t necessary to expand authority he already possessed.

“The president’s authority under the law before [the defense authorization bill was enacted] gave the president just as much power as he has under the new law,” said Stephen Dycus, a professor at Vermont Law School who has spent years studying the Insurrection Act. “Under either measure, I think the president has all the statutory power that he wants that he could need to respond to a terrorist attack or to a natural disaster.”

Dycus said the provision “was probably stuck in as a fig leaf to cover the president’s failures in responding to Hurricane Katrina.”

Eugene Fidell, president of the National Institute of Military Justice, agreed that the provision may have been a face-saving move for the administration. But Fidell said someone in Congress should own up to inserting the language. “A provision that no one will defend is a provision that doesn’t belong in the U.S. Code,” Fidell said.

The original language in the Insurrection Act states that the president may use the armed forces to suppress any “insurrection, domestic violence, unlawful combination, or conspiracy” if state and local law enforcement are unable to protect citizens.

Section 1076 of the fiscal 2007 defense authorization bill changes the title of the Insurrection Act to “Enforcement of the Laws to Restore Public Order.” The bill also was expanded by allowing the president to exercise this right to include, “a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order.” S 513 would repeal those changes.

Eileen Sullivan can be reached at esullivan@cq.com.