In our previous post, we surveyed the last major piece of emergency power legislation enacted by Congress prior to the 1957 Little Rock crisis. In all, there are four separate laws authorizing the president to use military force to respond to domestic disorders: (1) the Militia Act of 1795, (2) the Insurrection Act of 1807, (3) the Suppression of Rebellion Act of 1861, and (4) Civil Rights Act of 1871. Combined, these laws remained almost entirely unchanged when President Dwight D. Eisenhower issued Proclamation #3204 during the Little Rock crisis of the fall of 1957. (His historic proclamation, dated 23 September 1957, formally declared an “Obstruction of Justice in the State of Arkansas,” an essential prerequisite for any use of military force inside the U.S.) By that time, the set of emergency laws mentioned above had been codified together at Sections 331 to 334 of Volume 10 of the U.S. Code (10 U.S.C. §§ 331-334) as follows:
- Internal Insurrections: 10 USC § 331 is based on the 1807 Insurrection Act, authorizing the president to use military force to respond to internal insurrections within a state.
- Unlawful obstructions: 10 USC § 332 is based on Section 1 of the 1861 Suppression of the Rebellion Act, authorizing the president to use military force to deal with unlawful obstructions of federal law.
- Civil rights: 10 USC § 333 is based on Section 3 of the 1871 Civil Rights Act, authorizing the president to use military force to deal with private acts of violence in violation of federal law.
- Proclamation requirement: 10 USC § 334 is based on the proclamation requirement contained in the 1795 Militia Act and the 1861 Suppression of the Rebellion Act
So, which of these laws did President Eisenhower rely on when he issued his proclamation and prepared to give the order to send U.S. troops into Little Rock? Eisenhower’s formal proclamation specifically refers to Sections 332 and 333. (Notice the omission of Section 331, which requires a request from a state legislature or governor before the president can use force.) To our mind, the invocation of Section 332 makes sense, since Governor Orval Faubus had used the Arkansas National Guard to impede the court-ordered integration of Central High School, and likewise, the reference to Section to 333 also makes sense, since mob violence had occurred on the grounds of Central High after Governor Faubus had removed the Arkansas National Guard.
Before concluding this series of posts, we now wish to pose one last question: what should we call this body of law? We shall pause to address that question in our next post.