prior probability

Note: This is the last blog post in a series of posts on the president’s power to use military force to quell domestic disturbances inside the United States.

Thus far, we have surveyed the enactment of five federal “domestic violence” laws under Article IV of the Constitution, i.e. laws authorizing the president to use military force inside the United States under certain conditions. (The term “domestic violence” appears in Article IV, Section 4 of the Constitution. See my 2019 paper “Domestic Constitutional Violence” for a scholarly treatment of these laws.) For your reference, these laws are currently codified in Sections 251 to 254 of Volume 10 of the United States Code as follows:

1. Internal Insurrections (10 U.S. Code § 251): among other things, this provision, which is based on the Insurrection Act of 1807, authorizes the president to use military force to respond to internal insurrections within a State.
2. Unlawful obstructions (10 U.S. Code § 252) this provision, which is based on Section 1 of the Suppression of the Rebellion Act of 1861, authorizes the president to use military force to deal with unlawful obstructions of federal law.
3. Civil rights (10 U.S. Code § 253): this provision, which is based on Section 3 of the Third Enforcement Act, authorizes the president to use military force to deal with private acts of violence in violation of federal law.
4. Proclamation requirement (10 U.S. Code § 254): this procedural provision is based on the proclamation requirement contained in the original Militia Acts of 1792 and 1795.

Aside from the merely procedural proclamation requirement, what are the substantive limits, if any, to the president’s “domestic violence” powers? This dangerous body of law thus raises a paradoxical question about the proper role of violence in a constitutional republic and the relation between the rule of law and the use of violence, deep and difficult questions that can be traced back to Walter Benjamin’s classic essay on law and violence. Instead of attempting to answer this hoary metaphysical question, I will conclude by posing a subsidiary and more mundane query:

What should we call this corpus of law?

Scholars have affixed a wide variety of labels to this body of law. By way of example, these domestic violence laws have often been referred to as the “insurrection acts” (Hoffmeister), the “militia acts” (Vladeck), “the civil disturbance regulations” (Campisi), and “the law of public defense” (Dennison). In my view, however, all of these various labels are problematic. Let me explain.

On the one hand, references to such euphemisms as “civil disturbances” or “domestic disorders” are too broad, implying that the trigger or threshold for the use of military force is a low one, while on the other hand, references to “the militia acts” are too narrow, since the president is now authorized to use the regular armed forces in addition to State militias. Likewise, references to “the law of public defense” are also too narrow, since one of these laws, the 1871 Enforcement Act, broadly authorizes the president to use military force in response to private acts of violence that deprive individuals of their constitutional rights. And lastly, references to “the insurrection act” are incomplete, since the president also has the power to respond to other types of domestic dangers as well, such as invasions and large-scale obstructions of justice. In the alternative, we could refer to this body of law as “the calling forth acts” based on the original language of the 1792 and 1795 militia acts, but the modern statutes no longer use this “calling forth” formulation.

In place of these incomplete and imperfect labels, I have proposed the term “the laws of constitutional necessity” (Guerra-Pujol, 2019, pp. 231-232). One advantage of this label is that it does not take sides on the question of the source of the president’s power to use military force to preserve, protect, and defend the Constitution. That is, whether this delicate power is an inherent one under Article II of the Constitution or a delegated one under Article I, how can a mere piece of paper or “parchment barrier” by itself prevent a president from using the full powers of his office to enforce his understanding of the Constitution? (As an aside, the apt phrase “parchment barrier” originally appears in Federalist Paper No. 48.) The other reason why I prefer this label is that the word “necessity” implies that the military should always be used as a last resort and that any such use of force should be proportionate to the threat encountered. (In other words, I wish to invoke the longstanding common law tradition and understanding of the defense of necessity. See, for example, Christie, 1999.)

We could go far deeper into the meaning of the concept of “necessity.” (See, for example, the image below as well as the fascinating work of Giorgio Agamben, 2005.) In summary, does “necessity” authorize one to break the law (thus conferring legal immunity on an illegal act; cf. the work of my colleague Michael Stokes Paulsen), or does “necessity” convert an otherwise illegal act into a lawful one (my view)? Either way, it suffices to say that the president’s power to use military force during a domestic crisis, though undeniable regardless of its source, cannot be an unlimited one in a self-governing republic like ours. Instead, the inevitable occurrence of a domestic danger—whether it be an external invasion, an internal insurrection, or a large-scale obstruction of law—should determine the duration and extent of any domestic violence or threat of violence to be used in response to the danger.

Source: Dr Irfan Hyder

Works Cited

Giorgio Agamben, State of Exception (2005).

Walter Benjamin, Critique of Violence, in Selected Writings: Vol. 1, 1913-1926 (Marcus Bullock & Michael W. Jennings, editors, 2004).

Dominic J. Campisi, The Civil Disturbance Regulations: Threats Old and New, 50 Indiana Law Journal 757 (1975).

George C. Christie, The Defense of Necessity Considered from the Legal and Moral Points of View, 48 Duke Law Journal 975 (1999).

George M. Dennison, Martial Law: The Development of a Theory of Emergency Powers, 1776-1861, 18 American Journal of Legal History 52 (1974).

F. E. Guerra-Pujol, Domestic Constitutional Violence, 41 University of Arkansas (Little Rock) Law Review 211 (2019).

Thaddeus Hoffmeister, An Insurrection Act for the Twenty-First Century, 39 Stetson Law Review 861 (2010).

Michael Stokes Paulsen, The Constitution of Necessity, 79 Notre Dame Law Review 1257 (2004).

Stephen I. Vladeck, The Field Theory: Martial Law, the Suspension Power, and the Insurrection Act, 80 Temple Law Review 391 (2007).

I am interrupting my series of blog posts on the president’s power to use military force inside the United States to share this game-theoretic perspective of riots via The Scholar’s Stage (italics in original; hat tip: Tyler Cowen): “Riots then are best understood as a coordination problem. People must act together for the riot to proceed, and importantly, they must act at the same time. Corporations and military commands develop vast hierarchies to ensure that those in their employ work in concert. The rioter does not have this option available to him.” The late great Thomas Schelling (1960, p. 90) explains in his classic work “The Strategy of Conflict” (pictured below; and one of my favorite non-fiction works of all time) how would-be rioters are able to solve this coordination problem:

It is usually the essence of mob formation that the potential members have to know not only where and when to meet but just when to act so that they act in concert. Overt leadership solves the problem; but leadership can often be identified and eliminated by the authority trying to prevent mob action. In this case the mob’s problem is to act in unison without overt leadership, to find some common signal that makes everyone confident that, if he acts on it, he will not be acting alone. The role of “incidents” can thus be seen as a coordinating role; it is a substitute for overt leadership and communication. Without something like an incident, it may be difficult to get action at all, since immunity requires that all know when to act together.

As of today (June 1), we have witnessed six days and six nights of protests, looting, and other civil disturbances in many cities across the U.S. following the extrajudicial police killing of George Floyd in Minneapolis. We assume this unrest will come to an end once all four police officers involved in Mr Floyd’s death are charged by local or federal prosecutors. But what if the unrest continues unabated? At what point does the president order the military into a U.S. city to restore order, and does the president even have this authority in the first place?

It turns out that the president does have this authority under a series of five federal laws enacted by Congress between 1792 and 1871. Thus far, we have reviewed the first three of these historic laws–the Insurrection Act of 1807 as well as the Militia Acts of 1792 and 1795. In this post, we will proceed to the Suppression of Rebellion Act and one of post-Civil War “Enforcement Acts”. The former law was enacted in 1861, just as the “War Between the States” was getting started, while the latter law was enacted in 1871, a few years after the Civil War had ended. Suffice it to say that these two laws further expanded the president’s power to use military force inside the United States.

By the time a rump Congress had enacted The Suppression of Rebellion Act on July 29, 1861, eleven States had already officially left the Union. Ironically, however, President Lincoln did not base his legal authority to conduct the civil war on the 1861 law. Nevertheless, the 1861 law represents a major expansion of the president’s power to use military force inside the U.S.; or in the words of one legal scholar (Stephen Vladeck, 2004, pp. 166-167), “to whatever extent the 1795 Act had removed or changed three important checks on the President’s authority under the 1792 Act, the 1861 Act heavily diluted the major checks that remained.”

Specifically, the 1861 law revised the existing 1795 and 1807 domestic violence laws that we saw in our previous posts by authorizing the president to use military force to respond to “rebellions.” In addition, Section 1 of the 1861 amended and replaced Section 2 of the old 1795 Militia Act and further increased the president’s military power in two ways. First, the new rebellion law replaced the previous obstruction trigger in the 1795 law with a much lower standard. Under the old law, an obstruction had to be “by combinations too powerful to be suppressed by the ordinary course of judicial proceedings”; under the new law, by contrast, the obstruction just had to make it “impracticable” to enforce federal laws. Second, the 1861 law committed to the president’s sole discretion the initial determination of whether or not it was “impracticable” to execute the laws!

Of course, it should come as no surprise that the Congress would vote to expand the president’s power to use military force during one of our nation’s most serious political and military crisis. But the Congress would further expand the president’s panoply of domestic military powers when it enacted a series of three “enforcement acts” in 1870 and 1871 in response to the rise of private militias like Ku Klux Klan following the defeat of the Old Confederacy. (For an excellent overview of the politics and history of these enforcement laws, see Jeffrey A. Jenkins & Justin Peck, Congress and Civil Rights: The Demise of Reconstruction, 1871-1877 (2016), especially pp. 1-22, available here.)

Of particular relevance to our legal saga is the third Enforcement Act, which was enacted by the Congress on April 20, 1871. What makes this particular law noteworthy is that it authorizes the president to use military force to enforce constitutional rights. Previous domestic violence laws enacted by the Congress were designed to give the president the military power to enforce federal laws as well as the military power to protect the territorial integrity of the United States. Section 3 of the 1871 Act, by contrast, authorizes the president to use military force to protect “the rights, privileges, or immunities” of “the people” when one of two conditions are met. First, the president may use military force inside the U.S. to fight an insurrection or an unlawful combination or conspiracy in a State that obstructs or hinders the enforcement of State or federal law, when the “constituted authorities of such State” are unable or refuse to protect the constitutional and civil rights of the people. In the alternative, the 1871 law authorizes the president to use military force “whenever any such insurrection, violence, unlawful combination, or conspiracy shall oppose or obstruct the laws of the United States or the . . . due course of justice under the same.”

FYI: President Ulysses S. Grant invoked this enforcement legislation in the fall of 1871 when he ordered U.S. Army Major General Alfred H. Terry (pictured below, bottom left) to eradicate the Klan and arrest its members in the northern counties of South Carolina, and Section 3 of the 1871 Act is still in effect to this day, along with the Suppression of Rebellion Act of 1861, the Insurrection Act of 1807, and the amended parts of the Militia Act of 1795. Combined, this remarkable body of law gives the president enormous powers to respond to “domestic violence” (as that term of art is used in Article IV of the Constitution). We will conclude our review of this dangerous body of “domestic violence” law in our next post.

Let’s proceed with our review of federal “domestic violence” law. When former Vice President Aaron Burr was accused of orchestrating a shadowy conspiracy to create an independent republic in North America in late 1805, President Thomas Jefferson took decisive military and legal actions to apprehend the conspirators and halt Burr’s scheme. (This enigmatic episode in our nation’s history is referred to by historians as The Burr Conspiracy.) From a legal perspective, however, President Jefferson found himself in a constitutional “catch-22” situation. On the one hand, only State militias could be used against domestic insurrections under then-existing law (the Militia Act of 1795, which we reviewed in a previous post). On the other hand, Aaron Burr intended to create an independent republic in Texas, and at that time, Texas was a Spanish dominion, not a U.S. State, so there was no State militia for Jefferson to call!

The solution to this legal catch-22 was federal legislation authorizing the use or regular U.S. Army soldiers as well as local militias to respond to domestic dangers, and the Congress soon thereafter adopted this novel solution when it enacted the Insurrection Act of 1807. This remarkable law consists of a single sentence and is worded as follows:

That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.

This dangerous law expands the president’s authority to use military force inside the United States in two significant ways. First, the new law applied to “all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory.” In other words, the president could now use federal military force to enforce both State laws as well as federal laws. But even more importantly, the 1807 law not only authorized the president to “call forth” State or local militias in these two situations (“insurrection” and “obstruction to the laws”); for the first time the 1807 law also authorized the president to activate federal troops. Prior to 1807, the president had to rely on State or local militias to put down rebellions and repel invasions on U.S. soil. Now, beginning with the 1807 law, the president obtained legislative authority from Congress to use regular federal troops in addition to State and local militias to respond to domestic dangers.

In the scheme of things Aaron Burr’s conspiracy was a small blip on the constitutional radar; the greatest threat to the vitality of the Constitution and to the territorial integrity of the United States was yet to come: the Civil War (1861-1865). The Congress further expanded the president’s legal authority to use military force inside the U.S. when it enacted the Suppression of Rebellion Act of 1861 and Enforcement Act of 1871, so we will review those two laws in our next post.

When can a president use military force inside the United States? Article I, Section 8 of the Constitution gives to the Congress—not to the president—the power “to raise and support armies” as well as the power “to provide for calling forth the militia.” Nevertheless, the Congress delegated its constitutional calling forth power to the president early in our nation’s history, when it enacted the first Militia Act of 1792, and this was the law that President George Washington invoked when he called forth four State militias in response to the Whiskey Rebellion of 1794. In summary, the 1792 Act law spells out three different procedures the president must follow to call forth a militia, depending on the type of domestic danger he is responding to:

• Invasion. When there is an invasion or an imminent threat of invasion, the president may act unilaterally to repel the invasion.
• 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 of the State, if the legislature cannot be convened in time.
• Execution of the laws of the union. In order to use military force to enforce federal law, the president must first 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.”

Furthermore, the 1792 law contained two additional checks on a president’s use of domestic constitutional violence. First, it imposed a public 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 by powerful combinations—the president was required to issue a formal proclamation before using force, or in the words of the 1792 Act: “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.” Next, the 1792 law contained a two-year sunset provision.

At the behest of President Washington, however, the Congress repealed and replaced the 1792 Act with a new domestic violence law, which was enacted in 1795. The new law made three important changes to the old law. First off, the new law removed the cumbersome judicial certification requirement in situations involving obstructions of federal law. Under the old law (from 1792), if the president wanted to call forth the militia to enforce a federal law, he first had to obtain from a federal district judge or an associate justice of the U.S. Supreme Court a certification that the laws of the United States are being obstructed “by combinations too powerful to be suppressed by the ordinary course of judicial proceedings.” Under the new law, by contrast, the president was delegated the unilateral power to decide how serious or severe an obstruction was.

Secondly, the new 1795 law also modified the public proclamation requirement. Under the 1792 law, the president was required to issue a formal proclamation before he used force to respond to an emergency or other domestic danger. The new law, by contrast, deleted the words “and previous thereto.” Third and last, the new law removed the sunset clause. Unlike the 1792 law, which was temporary, the new 1795 replacement law was designed to remain on the books permanently.

But wait; there’s more! The Congress would further expand the president’s power to use military force inside the United States when it enacted the Insurrection Act of 1807. We will explore the details of this dangerous law in our next blog post …

Happy 19th Birthday Aritzia!

Yes, he does, and he doesn’t have to wait for the Governor of Minnesota to make a formal request for federal help. Beginning in 1792, the Congress enacted five specific laws authorizing the president to use military force within the United States: (1) the first Militia Act of 1792, (2) the Militia Act of 1795, (3) the Insurrection Act of 1807, (4) the Suppression of Rebellion Act of 1861, and (5) the Enforcement Act of 1871. Combined, this remarkable body of law pre-authorizes the president to commit acts of domestic constitutional violence under certain conditions.

As it happens, several scholars have studied the content and historical context of these laws. For an in-depth history of this body of “domestic violence” law, the best place to start is Robert W. Coakley’s beautiful 1988 book “The Role of Federal Military Forces.” Another helpful source is Stephen Vladeck’s excellent 2004 law review article on “Emergency Powers and the Militia Acts,” which was published in Volume 114 of the Yale Law Journal. Lastly, I can also recommend Dominic J. Campisi’s 1975 law review article on “The Civil Disturbance Regulations: Threats Old and New,” which was published in Volume 50 of the Indiana Law Journal.

But wait; there’s more! In addition to these scholarly sources, yours truly also explored this dangerous body of law in my 2019 paper “Domestic Constitutional Violence,” which was published in Volume 41 of the University of Arkansas Law Review. (My paper is available free of charge here, via SSRN.) As a public service, I will further delve into the details of each of these laws in my next few blogs posts.

Is Donald Trump the Adam Silver of politics? For someone with such a big mouth, why hasn’t he addressed his fellow citizens yet? Sorry, but tweets and subtweets are no substitute for a live address to the nation.

Update (May 31): Still waiting … Although Trump made some ineffectual remarks about the need for “law and order” at a scheduled speech at the Kennedy Space Center in Cape Canaveral, Florida, he has yet to address the nation from the Oval Office during prime time. What in God’s name is he waiting for?

Update #2 (June 1): Trump addressed the nation today and implied that he might deploy the U.S. military to quell the current unrest. Here is a recap of the relevant laws that allow the president to take military action inside the U.S.