We have thus far reviewed four major pieces of legislation authorizing the president to use military force inside the United States: (1, 2) the Militia Acts of 1792 and 1795, (3) the Insurrection Act of 1807, and (4) the Suppression of Rebellion Act of 1861, and as we have seen, each time the Congress legislated in this domain, it voted to expand the president’s power to use military force in domestic emergencies. Congress would further expand the president’s use-of-force power when it enacted the Civil Rights Act of 1871, available here. This historic law was designed to protect the rights of former slaves, many of whom were being harassed, intimidated, and threatened across the South by extremist groups such as the Ku Klux Klan. Specifically, Section 3 of the 1871 law authorized the president to use military force to protect “the rights, privileges, or immunities” of “the people.” The full text of Section 3 consists of a single sentence and is worded as follows (emphasis added):
“in all cases where insurrection, domestic violence, unlawful combinations, or conspiracies in any State shall so obstruct or hinder the execution of the laws thereof, and of the United States as to deprive any portion or class of the people of such State of any of the rights, privileges, or immunities, or protection, named in the Constitution and secured by this act, and the constituted authorities of such State shall either be unable to protect, or shall, from any cause, fail in or reuse protection of the people in such rights, such facts shall be deemed a denial by such State of the equal protection of the laws to which they are entitled under the Constitution of the United States; and in all such cases, or 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, it shall be lawful for the President, and it shall be his duty to take such measures, by the employment of the militia or the land and naval forces of the United States, or of either, or by other means, as he may deem necessary for the suppression of such insurrection, domestic violence, or combinations; and any person who shall be arrested under the provisions of this and the preceding section shall be delivered to the marshal of the proper district, to be dealt with according to law.”
This law thus expanded the president’s power to use military force to deal with private acts of violence against the former slaves. In particular, the president is authorized to use military force to protect the rights of “the people” if the following conditions are met: (1) there is an insurrection or an unlawful combination or conspiracy that obstructs or hinders the enforcement of state or federal law; and (2) 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.”
It’s time to sum up. In brief, the 1871 Civil Rights Act represents the last major piece of emergency power legislation enacted by Congress until the Little Rock crisis of 1957, but which of these laws did President Eisenhower rely on when he sent troops from the 101st Airborne Division to Central High School in the fall of 1957? We shall address that question in our next post.