September 11 forced the nation to reckon with workers’ compensation as never before. Conceived as a substitute for costly and inefficient state tort litigation at the turn of the 20 century, workers’ compensation was never intended to handle the threat of terrorism. Quickly adjusting to changed circumstances, the insurance industry persuaded the White House and Congress to enact a federal terrorism backstop program in 2002 that requires the federal government to pay 90 percent of the cost of an attack by foreign terrorists after losses are greater than $10 billion, up to a total of $100 billion. The government will pay a smaller amount for losses less than $10 billion.

Whatever its merits, a federal terrorism backstop plan does nothing to meet the clear and present needs of first responders. They must still turn to workers’ compensation and, despite the impressive efforts in New York and Virginia after Sept. 11, state workers’ compensation laws are simply not up to the demands of modern America fighting a war on terrorism. If anything, the demands of this new warfare will require the federal government to lead the states to a new form of compensation for lost wages and medical care. After all, the Constitution recognizes only one commander-in-chief.