Does the government have the power to force evacuation?

There’s been some confusion this morning about “forced evacuation” of the last citizens attempting to stick it out in the hurricane- and flood-stricken New Orleans. The news media refers to what’s going on as a forced evacuation. The Coast Guard commander interviewed on the morning news said that military personnel were going door-to-door and telling people to evacuate but that the application of force was “a matter for the civilian authorities”.

There’s a question that I haven’t heard discussed adequately: does the government have the power to force evacuation? In whom does that power reside? I believe that in Illinois the governor could, presumably after the declaration of martial law, force an evacuation under his powers as head of the state militia but in Illinois the militia is explicitly defined as all of the people of Illinois. But I would assume that this could only be done under emergency circumstances. Can an emergency be of indefinite length? It would appear to me that such power is a license for abuse.

I don’t know about Louisiana.

In the 1944 case Korematsu v. United States which upheld the detention of people of Japanese ancestry during World War II in his dissenting opinion Justice Murphy refers to the detention as a forced evacuation:

The main reasons relied upon by those responsible for the forced evacuation, therefore, do not prove a reasonable relation between the group characteristics of Japanese Americans and the dangers of invasion, sabotage and espionage. The reasons appear, instead, to be largely an accumulation of much of the misinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices — the same people who have been among the foremost advocates of the evacuation. A military judgment based upon such racial and sociological considerations is not entitled to the great weight ordinarily given the judgments based upon strictly military considerations. Especially is this so when every charge relative to race, religion, culture, geographical location, and legal and economic status has been substantially discredited by independent studies made by experts in these matters.

However, this dissent appears to presume that an evacuation could reasonably be forced if there were a legitimate military necessity for such an evacuation so forced evacuations were not rejected per se only forced evacuations based on race without legitimate military purpose.

Perhaps there’s an interested blawger out there who’d be interested in commenting on the history and legality of forced evacuations.

UPDATE: Apparently there’s a Catch-22 aspect to this:

The state disaster law does not supersede either the state or federal Constitutions, said Kenneth M. Murchison, a law professor at Louisiana State University. But even so, Mr. Nagin’s decision could be a smart strategy that does not violate fundamental rights, Professor Murchison said.

“What I suspect is that if they do forcible evacuations, the authorities will tell the residents that they must leave and that they will arrest them if they don’t,” Professor Murchison said. “I would suspect that once they are moved to a location outside of New Orleans, the authorities will release them. It would then be up to the district attorney someday to decide whether to prosecute them or not. But in the meantime, the authorities sure aren’t going to let anyone back in.”

Professor Murchison said that anyone even seeking to challenge the forcible evacuations on constitutional grounds would have to travel to Baton Rouge, where the federal judges from the Eastern District of Louisiana, based in New Orleans, have relocated.

So, in order to protest the evacuation order you have to evacuate. Hat tip: Gary Farber

UPDATE: Submitted to the Beltway Traffic Jam.