We have thus far reviewed the Militia Acts of 1792 and 1795 as well as the Insurrection Act of 1807. The legislative trend should now be crystal clear. Each time Congress has enacted legislation authorizing the president to use military force to deal with domestic disorders, the Congress has expanded the president’s emergency powers in one way or another. “The Suppression of Rebellion Act of 1861” would be no exception to this trend. The full text of the rebellion law is available here. In this post, we will focus on Section 1 of the 1861 law, which amended and replaced Section 2 of the old 1795 Militia Act (available here). In full, Section 1 consists of a single sentence and is worded as follows (emphasis added):
“whenever, by reason of unlawful obstructions, combinations, or assemblages of persons, or rebellion against the authority of the Government of the United States, it shall become impracticable, in the judgment of the President of the United States, to enforce, by the ordinary course of judicial proceedings, the laws of the United States within any State or Territory laws of the United States, it shall be lawful for the President of the United States to call forth the militia of any or all the States of the Union, and to employ such parts of the land and naval forces of the United States as he may deem necessary to enforce the faithful execution of the laws of the United States, or to suppress such rebellion in whatever State or Territory thereof the laws of the United States may be forcibly opposed, or the execution thereof forcibly obstructed.”
The 1861 law thus increased the president’s military power in three new ways. First, the rebellion law replaced the previous obstruction standard or trigger with a much lower standard. Specifically, 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, it just had to be “impracticable” to enforce federal laws. In addition, the 1861 law committed to the president’s sole discretion the initial determination whether or not it was “impracticable” to execute the laws. Last but not least, the new law also added “rebellion against the authority of the Government of the United States” to the list of instances under which the power to use military force to “execute the laws” could be invoked.
To sum up, in the words of one scholar (Vladeck, 2004, p. 167, footnotes omitted), “to whatever extent the 1795 Act had removed or changed three important checks on the President’s emergency authority under the 1792 Act, the 1861 Act heavily diluted the major checks that remained.” Of course, it should come as no surprise that Congress would vote to further expand presidential emergency powers during our nation’s most serious political and military crisis, but Congress would further expand the president’s use-of-force powers when it enacted the Civil Rights Act of 1871 in response to the rise of the Ku Klux Klan in the South, so we will revisit the 1871 law in our next post. (Source cited above: Stephen I. Vladeck, “Emergency Powers and the Militia Acts,” Yale Law Journal, Vol. 114 (2004), pp. 149-194.)