Recap of the laws of national necessity

Note: This is the last blog post in a series of posts on the president’s power to use military force to quell domestic disturbances inside the United States.

Thus far, we have surveyed the enactment of five federal “domestic violence” laws under Article IV of the Constitution, i.e. laws authorizing the president to use military force inside the United States under certain conditions. (The term “domestic violence” appears in Article IV, Section 4 of the Constitution. See my 2019 paper “Domestic Constitutional Violence” for a scholarly treatment of these laws.) For your reference, these laws are currently codified in Sections 251 to 254 of Volume 10 of the United States Code as follows:

Internal Insurrections (10 U.S. Code § 251): among other things, this provision, which is based on the Insurrection Act of 1807, authorizes the president to use military force to respond to internal insurrections within a State.
Unlawful obstructions (10 U.S. Code § 252) this provision, which is based on Section 1 of the Suppression of the Rebellion Act of 1861, authorizes the president to use military force to deal with unlawful obstructions of federal law.
Civil rights (10 U.S. Code § 253): this provision, which is based on Section 3 of the Third Enforcement Act, authorizes the president to use military force to deal with private acts of violence in violation of federal law.
Proclamation requirement (10 U.S. Code § 254): this procedural provision is based on the proclamation requirement contained in the original Militia Acts of 1792 and 1795.

Aside from the merely procedural proclamation requirement, what are the substantive limits, if any, to the president’s “domestic violence” powers? This dangerous body of law thus raises a paradoxical question about the proper role of violence in a constitutional republic and the relation between the rule of law and the use of violence, deep and difficult questions that can be traced back to Walter Benjamin’s classic essay on law and violence. Instead of attempting to answer this hoary metaphysical question, I will conclude by posing a subsidiary and more mundane query:

What should we call this corpus of law?

Scholars have affixed a wide variety of labels to this body of law. By way of example, these domestic violence laws have often been referred to as the “insurrection acts” (Hoffmeister), the “militia acts” (Vladeck), “the civil disturbance regulations” (Campisi), and “the law of public defense” (Dennison). In my view, however, all of these various labels are problematic. Let me explain.

On the one hand, references to such euphemisms as “civil disturbances” or “domestic disorders” are too broad, implying that the trigger or threshold for the use of military force is a low one, while on the other hand, references to “the militia acts” are too narrow, since the president is now authorized to use the regular armed forces in addition to State militias. Likewise, references to “the law of public defense” are also too narrow, since one of these laws, the 1871 Enforcement Act, broadly authorizes the president to use military force in response to private acts of violence that deprive individuals of their constitutional rights. And lastly, references to “the insurrection act” are incomplete, since the president also has the power to respond to other types of domestic dangers as well, such as invasions and large-scale obstructions of justice. In the alternative, we could refer to this body of law as “the calling forth acts” based on the original language of the 1792 and 1795 militia acts, but the modern statutes no longer use this “calling forth” formulation.

In place of these incomplete and imperfect labels, I have proposed the term “the laws of constitutional necessity” (Guerra-Pujol, 2019, pp. 231-232). One advantage of this label is that it does not take sides on the question of the source of the president’s power to use military force to preserve, protect, and defend the Constitution. That is, whether this delicate power is an inherent one under Article II of the Constitution or a delegated one under Article I, how can a mere piece of paper or “parchment barrier” by itself prevent a president from using the full powers of his office to enforce his understanding of the Constitution? (As an aside, the apt phrase “parchment barrier” originally appears in Federalist Paper No. 48.) The other reason why I prefer this label is that the word “necessity” implies that the military should always be used as a last resort and that any such use of force should be proportionate to the threat encountered. (In other words, I wish to invoke the longstanding common law tradition and understanding of the defense of necessity. See, for example, Christie, 1999.)

We could go far deeper into the meaning of the concept of “necessity.” (See, for example, the image below as well as the fascinating work of Giorgio Agamben, 2005.) In summary, does “necessity” authorize one to break the law (thus conferring legal immunity on an illegal act; cf. the work of my colleague Michael Stokes Paulsen), or does “necessity” convert an otherwise illegal act into a lawful one (my view)? Either way, it suffices to say that the president’s power to use military force during a domestic crisis, though undeniable regardless of its source, cannot be an unlimited one in a self-governing republic like ours. Instead, the inevitable occurrence of a domestic danger—whether it be an external invasion, an internal insurrection, or a large-scale obstruction of law—should determine the duration and extent of any domestic violence or threat of violence to be used in response to the danger.