The Militia Act of 1792

We posed a provocative question in our previous post, where we asked whether President Eisenhower acted lawfully when he sent federal troops into Little Rock in the fall of 1957. Although the president is the “commander in chief” of the armed forces and has the power to enforce federal laws, at the same time Article I, Section 8 of the Constitution gives Congress–not the president–the power “to raise and support armies” and “to provide for calling forth the militia.” (See image below.) Nevertheless, Congress delegated this “calling forth” power to the president early in our nation’s history, when Congress enacted the Militia Act of 1792. In particular, the 1792 law spells out three different procedures the president must follow to call forth a militia, depending on the type of emergency he is responding to:

  1. Invasion. When there is an invasion or an imminent threat of invasion, the president may act unilaterally to repel the invasion.
  2. Insurrection. When there is an internal insurrection within a state, the president’s authority to use military force is subject to a state veto of sorts. Specifically, the president must first request authorization from the state legislature or from the governor, if the legislature cannot be convened in time, before calling forth the militia.
  3. Execution of the laws of the union. In order to use military force to enforce federal law, the In either case, the president must request a certification from an associate justice of the U.S. Supreme Court or from a federal district judge. Specifically, the associate justice or district judge must certify that the laws of the United States are being obstructed “by combinations too powerful to be suppressed by the ordinary course of judicial proceedings.” In addition, the president must also receive authorization from Congress. If Congress is not in session, however, then the president’s authorization to use force automatically expires “thirty days after the commencement of the ensuing session.”

In addition, the 1792 law imposed a proclamation requirement on the president. That is, in any of these three situations, whether it be a foreign invasion, an internal insurrection, or an obstruction of federal law, the president was required to issue a formal proclamation before using force: “whenever it may be necessary, in the judgment of the President, to use the military force hereby directed to be called forth, the President shall forthwith, and previous thereto, by proclamation, command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited time” (emphasis added).

Lastly, it’s also worth noting that the 1792 law contained a two-year sunset provision. Congress, however, reenacted the Militia Act on a permanent basis in 1795. Congress also took this opportunity to make several significant changes to the original law. We will thus review the 1795 replacement law in our next post.

Image result for calling forth the militia

Source: Michael McLaughlin

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The Force of Law

One of the most dramatic moments in our nation’s history occurred in sleepy Little Rock, Arkansas in the fall of 1957, when President Dwight D. Eisenhower sent 1,000 U.S. Army paratroopers from the 101st Airborne Division to restore order at Little Rock’s Central High School. But did Eisenhower have the legal authority to unilaterally send troops into Little Rock? In a televised address to the nation on 24 September 1957 (see video below), Eisenhower justified his historic decision on practical grounds: “Mob rule cannot be allowed to override the decisions of our courts.” But Eisenhower’s fateful decision to resort to military force poses many fundamental constitutional questions. What was the source of this power? In a word, was his use of force itself lawful? And if so, what are the limits, if any, to this power.

At that time (1957), the power of the president to deploy troops inside the United States was codified in Sections 331 through 335 of Volume 10 of the U.S. Code. (Today, this delicate power is codified at 10 USC Sections 251-255.) This legislation, in turn, can be traced back to the Militia Act of 1792, a law that was enacted over 200 years ago! President George Washington invoked this law when he responded to the infamous Whiskey Rebellion of 1794. The Militia Act was amended twice (in 1794 and in 1795) and was eventually replaced with a new domestic force law when another Founding Father, the polymath Thomas Jefferson, was still in office: the so-called Insurrection Act of 1807. In our next few posts, we will take a closer look at the texts of the 1792 Militia Act and the 1807 Insurrection Act.

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Where are they now? (Little Rock Nine edition)

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Language and Little Rock

Notice how one museum uses the word “reluctantly” to describe President Eisenhower’s historic decision to send soldiers from the 101st Airborne Division into Little Rock in the fall of 1957, while another museum uses the more pro-active verb “dispatch”. (Photo credit: Sydjia Guerra.)

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The evolution of mobile phones

Mobile Phone Size Evolution

Hat tip: Cliff Pickover (@pickover)

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Weighted Population Map of Asia and Oceania

Check out all of Max Roser’s weighted population maps here, via the website “Our World in Data”. (Hat tip: kottke.)

Credit: Max Roser

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Where is Ms Bingbing?

Via Channel NewsAsia: “China’s highest paid movie star Fan Bingbing … has not been seen in public since July …. The 36-year-old actress has been a household name in China for years and tasted Hollywood success with a role in the 2014 blockbuster ‘X-Men: Days of Future Past’. *** But she has gone quiet in recent months, following allegations of tax evasion.

“In [a] report by Beijing Normal University published earlier this month, 100 Chinese stars including popular actor Jackie Chan and award-winning actress Zhang Ziyi were ranked according to their professional work, charity work, and personal integrity. But with a pass requiring a score of more than 60 per cent, only nine celebrities made the cut, with Chinese actor Xu Zheng topping the list at 78.

“[Ms Bingbing] had a score of zero.” (Hat tip: Tyler Cowen.)

#DueProcess #FanBingbing (Credit: Fergus Ryan)

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