We now return to our analysis of President Eisenhower’s fateful decision to use military force to desegregate Central High School in Little Rock, Arkansas in the fall of 1957. One of the best constitutional arguments against the legality of Executive Order 10730 (and thus against Eisenhower’s use of force in Little Rock) is to focus on the meaning of the word “law.” Although Eisenhower ostensibly sent troops into Little Rock to enforce a federal court order, and although that court order was based on the Supreme Court’s reinterpretation of the 14th Amendment in Brown v. Board I and Brown II, the actual text of the 14th Amendment grants to Congress (not to the federal courts) the power to enact legislation to enforce the provisions of that amendment.
Likewise, one could also argue that the term “law” encompasses only formal enactments of Congress and not the Supreme Court’s interpretation of the Constitution, since all three branches of the federal government have the ability (and perhaps the duty) to interpret the Constitution as they see fit. Nevertheless, even if these arguments are persuasive in a technical or legalistic sense, from a practical perspective neither Congress nor the federal courts have “the power of the sword,” to borrow Alexander Hamilton’s apt phrase in Federalist Paper 78.
So, if the president’s military decisions are for all practical purposes unreviewable by the courts, we must turn our attention to Congress, and as we have noted in one of our previous posts, Congress has delegated limited authority to the president to use military force in the United States. But are those laws themselves constitutional? We shall consider this question in our next post.