Repeal and Replace: The Militia Act of 1795

When can a president use military force within the United States to respond to an emergency? As we saw in our previous post, Congress addressed this question for the first time when it enacted the first Militia Act of 1792, available here. But at the behest of President George Washington (see image below), Congress went ahead and repealed and replaced the 1792 law with a new use-of-force law in 1795, available here. The new law made three important changes to the old law:

  1. The new 1795 law removed the judicial certification requirement in situations involving obstructions of federal law. Under the old law, 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, the president had the power to decide how serious or severe an obstruction was. (The new law still imposed a 30-day time limit on the president’s calling forth power when Congress was in session.)
  2. The new law also modified the proclamation requirement. Under the old law, the president was required to issue a formal proclamation before he used force to respond to an emergency: “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). The new law, by contrast, deleted the words “and previous thereto.”
  3. Lastly, 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. Nevertheless, the 1795 Militia Act would be amended in 1803 and would then replaced with a new use-of-force law in 1807. We shall thus review the Insurrection Act of 1807 in our next post.
Image result for calling forth the militia

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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