The Framers Roll Over in Their Graves
Today, I have strongly recommended to every governor to deploy the National Guard in sufficient numbers that we dominate the streets. Mayors and governors must establish an overwhelming law enforcement presence until the violence has been quelled. If a city or a state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them. Donald Trump, June 1, 2020
Just when you thought it couldn’t get any worse…Let me rant a bit about federal unmarked troops in the streets of Portland, and soon Chicago and/or Albuquerque. I have no doubt that when you first heard about it you sensed that there is something gravely wrong about this. We all did. But as an attorney and a student of the Constitution I wanted to know exactly what was illegal about it, or was it?
My advice to besieged mayors would be to ring the federal buildings with police (or Moms!) And keep the feds penned into their own property.
Doubtless the Executive Branch has the authority to defend federal property against vandalism and destruction. For that reason my advice to besieged mayors would be to ring the federal buildings with police (or Moms!) And keep the feds penned into their own property. But what if the feds stray off federal property and confront and “arrest” protesters and throw tear gas bombs? What if our dear leader calls the protesters terrorists and anarchists that must be corralled, and faults local government for failing to preserve order? What exactly is the correct legal analysis?
Neal Katyal was Obama’s Solicitor General and is a constitutional scholar. His approach to the problem is twofold. First, he sees the deployment of Homeland Security troops to be beyond the legislative mandate of the agency; and second, he rightly points out that police functions in our federal system are reserved to local governments by the 10th Amendment; there is no such thing as a national police force. These two approaches are useful, but they are trees that miss the forest. Trump and his faux military chief of staff Barr scrounge up soldiers from many agencies, not just Homeland Security, including the Bureau of Prisons, the Secret Service, ATF, wherever. With regard to the 10th Amendment, litigation by states relying on that argument have failed more often than not in favor of Congress’ rights under the Commerce and Supremacy Clauses. Trump will no doubt argue that his actions are an emergency, of short-term duration, and not designed to usurp state authority (or cost states money) but instead to aid the states in restoring order. I prefer a structural approach based on the history, and constitutional authority of the militia.
Let’s begin by describing the invading personnel and their behavior for what it is: a militia. Tom Ridge said yesterday that “The [Homeland Security] department was established to protect America from the ever-present threat of global terrorism. It was not established to be the president’s personal militia.” Anyone observing the troops of the federal invasion would clearly describe it as a a military force, dressed in camouflage, carrying assault rifles and chemical warfare protective equipment. The American military is either the regular army (navy, air force, etc.) or the militia, now referred to as the National Guard. Calling the force a hastily assembled federal militia helps us focus our constitutional law analysis. Let’s look at the history of militias in our constitutional system.
The concept of a citizen soldier goes way back in Anglo-American jurisprudence, long before our Revolution was fought and won by the Continental (regular) Army supported by colonial militias. In 1285, the Statute of Winchester defined the militia as “every man between fifteen years of age and sixty years” and required every militiaman to maintain arms. During the 14th Century, competition between the monarchy and Parliament resulted in constraints on the militia’s employment. Under pressure from Parliament, the Crown promised that militia groups would not be used beyond the borders of their local shire unless there was the “sudden coming of strange enemies into the realm.” Concerned over the Crown’s power to impress all Englishmen into military service, Parliament passed other laws specifying that no citizen could be compelled to perform military service without the legislature’s assent and that militiamen could serve outside their native shires only in the instance of “great necessity.” With legal restrictions on the militia’s employment overseas, the English monarchs turned increasingly to mercenaries for foreign ventures. Parallel to the legal restrictions on militia is the English tradition against martial law, which dates to the Magna Carta. The law of the land, that is, civilian authority, is supreme.
After the French and Indian War the British Army remained in America to protect the frontiers of the newly acquired territories, to maintain peace between settlers and Indians, and to regulate the fur trade. Many Americans were suspicious of a standing army posted on their land and argued that for nearly 150 years the militia alone had provided adequate security. In 1765, Parliament passed the Stamp and Quartering Acts that raised taxes in the colonies and required the colonists to provide the British Army with living accommodations and supplies. Colonial outrage caused the repeal of the Stamp Act, but the practice of regulars quartered in American homes and public buildings endured. The Boston Massacre was triggered by local resentment of British soldiers stationed in Boston in order to maintain order. Today we are at risk of a Portland Massacre.
During the Revolution the colonial militias performed admirably alongside Washington’s regular army. After the war, the debate regarding a standing federal army in peacetime dominated the rivalry between Republicans (not today’s variety) and Federalists. Jefferson and the Republicans felt that local militias were sufficient to guarantee order; Hamilton and the Federalists argued for a strong federal standing army. Eventually the Republicans succeeded in imposing checks and balances against a hypothetical rogue president who might attempt to wield complete authority over the military.
By keeping up in Peace “a well regulated, and disciplined Militia,” we shall take the fairest and best method to preserve, for a long time to come, the happiness, dignity and Independence of our country. George Washington, Sentiments on a Peace Establishment, 1783
The U.S. Constitution perpetuated the dual system of regulars and citizen-soldiers for national defense. The Founding Fathers viewed the enrolled militia as a potential counterbalance against a repressive, standing army in the hands of a despotic leader. If the president served simultaneously as the commander in chief of the Regular Army and the militia, what would prevent a corrupt president from disbanding the militia and threatening the States with his professional army? To achieve a balance of power in the control of military forces, the Constitution gave primary responsibility for controlling the militia to Congress rather than the president. Congress retained for itself the powers for “organizing, arming and disciplining, the militia, and for governing such Part of them as may be employed in the service of the United States.” Congress has the power to call out the militia for three specific purposes. Article I, Section 8 reads: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions. Article II, Section 2 describes the only direct relationship between the president and the militia. Once Congress ordered the militia “called into the actual service of the United States,” the president was to act as commander in chief “of the Militia of the several States.” To prevent the States from creating extra-legal forces, Article II, Section 9 specified that no State could “keep troops” without “the consent of Congress.”
When the Bill of Rights was adopted in In 1791, two of the ten amendments dealt specifically with military matters. The Republicans feared that a tyrannical federal government might try to dissolve the militia. The Second Amendment guarantees the continuity of the state militias against possible federal usurpation: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” The reference to “a free State” pertains to the individual States rather than to the entire country or the population at large.
The Third Amendment also reins in the federal standing army. It prohibits the quartering of troops in private homes without the “consent of the Owner” and only “in a manner to be prescribed by law.”
In May 1792, Congress enacted The Militia Act of 1792 requiring all free, able-bodied men ages 18-45 to serve in the enrolled militia and to provide their own weapons and equipment. No federal monies were authorized for pay, equipment, training or any other purpose. The law authorized an Adjutant General (AG) in each State to enact the orders of the Governor. The AG was to supervise unit training, discipline, and administration and to provide formal, periodic reports to the Governor on the militia’s “arms, accoutrements and ammunition” and on all matters relating to “the general advancement of good order and discipline.” The act represented the triumph of the Republicans over the Federalists in militia affairs by reserving to the States near complete control over their soldiers.
In the same month, Congress passed the “Calling Forth Act”, later superseded by the Insurrection Act of 1807, which delegated to the president some of Congress’ authority to call the militia into federal service. Whenever the United States was invaded or a threat of invasion was imminent, the president received blanket authority to call out as many militiamen from as many States as necessary to meet the crisis. More on this later.
The Posse Comitatus Act of 1878 prohibited the regular military from aiding civil law enforcement authorities. The Posse Comitatus Act insured that the governors of the states would continue to rely upon the militia, now called the National Guard, for domestic law enforcement emergencies.
Until this point of the historical narrative Thomas Jefferson and his Republicans can be assured that the militias won’t stray from their “shire” and intrude upon the domestic authority of other states to maintain order, nor will the regular army indulge in local affairs. But Trump will argue that The Insurrection Act, 10 USC Sections 251 et seq., changes everything. This act allows the President to use U.S. military personnel, either the regular army or “federalized” state militias, to suppress insurrections at the request of a state legislature or governor. It also allows the president to bypass state authorities in the following scenario:
Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion. (10 U.S.C. Sec.252)
Here are the elements of presidential invocation of the Insurrection Act when state authorities are bypassed: First, there must be unlawful assemblages that threaten enforcement of federal law, not peaceful protests. Second, it must be “impracticable” to enforce federal law by the usual means (the “ordinary course of judicial proceedings”). Third, the only forces at the disposal of the president pursuant to this statute are the state militias (now the National Guard) or the regular army. This is critical: federal deployment is such a rare occurrence that the troops involved must be responsive to traditional command and control, not some ersatz order by secret leadership. And fourth, prior to invoking the Insurrection Act the president must issue a proclamation giving the rebels an opportunity to disperse and go home in a reasonable amount of time. None of these elements have been met in Portland. Once standing is established a judge should act swiftly to restrain the federal military presence.
The last time federal forces were deployed independent of any state request was the 1963 integration of the University of Alabama, pushing past George Wallace standing in the schoolhouse door, the 1962 rioting in Oxford, Mississippi when James Meredith registered to attend the University of Mississippi. Before that, President Eisenhower famously federalized the Arkansas National Guard in 1957 when Central High School in Little Rock was integrated. To use a rare exception to the Posse Comitatus Act and the Second Amendment that in the past has been used solely to vindicate the civil rights of black citizens, in order to advance Trump’s racist law and order agenda is a travesty, and violates the structure of our constitution.