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.