prior probability

We have been reviewing the federal statutes that President Dwight D. Eisenhower invoked when he sent federal troops into Little Rock, Arkansas in the fall of 1957. I now want to switch gears, so to speak, to discuss three obscure cases arising directly out of the desegregation of Central High School in the fall of 1957: (1) Thomason v. Cooper, 254 F.2d 808 (8^th Cir. 1958), (2) Jackson v. Kuhn, 254 F.2d 555 (8^th Cir. 1958), and (3) Duncan v. Kirby, 311 S.W.2d 157, Supreme Court of Arkansas (1958). The last two cases challenged President Eisenhower’s legal authority to send federal troops into Little Rock, but let’s begin with Thomason v. Cooper, for it is this case that in many ways precipitated the crisis in Little Rock that fall.

Although Thomason v. Cooper ended up being litigated in federal court, this case originally arose out of a state-court action brought in the Chancery Court of Pulaski County in August of 1957. It was originally brought by Mrs. Mary Thomason, the president of the newly-formed “Mothers’ League of Central High School,” a pro-segregation group. A week before the start of the 1957-58 school year, Mrs. Thomason brought this action on behalf of the Mother’s League to enjoin Little Rock’s school board from carrying out its integration plan at Central High School. Chancellor Murray Reed, who presided over this case at the state court level, granted the injunction on 29 August 1957. Although this case is not as well-known as Cooper v. Aaron, in which the Supreme Court ratified its decision in Brown v. Board of Education, it should be, for it set the legal stage for the historic showdown between supporters of segregation and the federal courts in Little Rock, a showdown that would culminate with President Eisenhower federalizing the Arkansas National Guard and sending the 101st Airborne Division into Little Rock to enforce desegregation at Central High School …

Unlike Mrs. Thomason’s case, the other two cases mentioned above arose after President Eisenhower sent U.S. troops into Little Rock; we will consider those cases in our next two posts.

Thus far, we have reviewed a number of historic federal laws authorizing the president to use military force inside the U.S. But what if Congress had never enacted these laws, or what if it were to repeal them tomorrow? In either case, one could argue that the president has the “inherent power” to use military force by virtue of his constitutional position as chief executive officer of the federal government. But whatever the source of the president’s power (i.e. Article I or Article II of the Constitution), what should we call this body of law?

Legal scholars have borrowed a wide variety of labels to describe this body of law, including “the insurrection act” (cf. Thaddeus Hoffmeister, 2010; Danielle Crockett, 2007), “the militia acts” (cf. Stephen I. Vladeck, 2004), or “the civil disturbance regulations” (cf. Dominic J. Campisi, 1975), or “the law of public defense” (cf. George M. Dennison, 1974). Yet, all of these various labels are problematic. 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. References to “the militia acts” are too narrow, since the president is now authorized to use the regular U.S. armed forces in addition to state militias. Likewise, references to “the law of public defense” are also too narrow, since the 1871 Civil Rights Act authorizes the president to use military force to respond to acts of private violence. And lastly, references to “the insurrection act” are incomplete, since the president has the power to respond to other types of emergencies 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.

For my part, I prefer the term “law of national necessity” for two reasons. One reason is that this label does not take sides on the question of the source of the president’s domestic military power. That is, whether this delicate power is an inherent one under Article II of the Constitution or is a delegated one under Article I, the reality is that no piece of paper is going to prevent any president from using the full powers of his office to respond to a national emergency. The other reason is that the president’s power to use military force cannot be an unlimited one in a constitutional republic like ours. Instead, the emergency situation itself–whether it be an invasion, insurrection, or large-scale obstruction of law–should determine the duration of any domestic intervention as well as the amount of military force to be used during the emergency.

But at the same time, references to “the law of national necessity” pose a deep philosophical puzzle. In particular, what is the relation between military force and the overall constitutional system of government created by the Constitution? After all, the federal courts and the Congress do not have their own armies to enforce their decisions or laws. So, as a matter of constitutional first principles, one could argue that the president is acting “within” the law when he uses military force inside the U.S. in response to an emergency, but at the same time, isn’t the use of military force totally antithetical to the idea of a republican constitution? If so, is there any viable solution to this logical paradox?

Credit: James Buchan

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:

1. 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.
2. 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.
3. 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.
4. 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.

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.

Source: Wikipedia

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.)

Thus far, we have reviewed the Militia Acts of 1792 and 1795. Those laws authorized the president to activate only state or local militias and only in three specific situations: invasions, insurrections, and obstructions of U.S. laws. But Congress would eventually vote to expand the president’s emergency powers when it enacted the Insurrection Act of 1807, available here. This historic law consists of a single sentence and is worded as follows:

“in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.”

Although the 1807 Insurrection Act did not repeal or modify the proclamation requirement under the old Militia Act of 1795, this law expanded the president’s emergency powers in two significant ways. First, the new law applied to “all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory.” In other words, the president could now use military force to enforce state laws as well as federal laws.

But more importantly, the 1807 law not only authorized the president to “call forth” state or local militias in these two situations (“insurrection” and “obstruction to the laws”); the new law also authorized the president to activate the U.S. armed forces in these situations. Prior to 1807, the president had to rely on state or local militias to put down rebellions and repel invasions on U.S. soil. Now, beginning with the 1807 law, the president had legislative authority from Congress to use federal troops (in addition to state and local militias) to respond to domestic emergencies.

When Congress enacted the Insurrection Act of 1807, it did not formally amend the language of the existing Militia Act of 1795. That would change when Congress enacted “The Suppression of Rebellion Act of 1861” on the eve of the U.S. Civil War. We will delve into the 1861 law in our next post.

Could it happen here?

When can a president use military force within the United States to respond to an emergency? As we saw in our previous post, Congress addressed this question for the first time when it enacted the first Militia Act of 1792, available here. But at the behest of President George Washington (see image below), Congress went ahead and repealed and replaced the 1792 law with a new use-of-force law in 1795, available here. The new law made three important changes to the old law:

1. The new 1795 law removed the judicial certification requirement in situations involving obstructions of federal law. Under the old law, if the president wanted to call forth the militia to enforce a federal law, he first had to obtain from a federal district judge or an associate justice of the U.S. Supreme Court a certification that the laws of the United States are being obstructed “by combinations too powerful to be suppressed by the ordinary course of judicial proceedings.” Under the new law, the president had the power to decide how serious or severe an obstruction was. (The new law still imposed a 30-day time limit on the president’s calling forth power when Congress was in session.)
2. The new law also modified the proclamation requirement. Under the old law, the president was required to issue a formal proclamation before he used force to respond to an emergency: “whenever it may be necessary, in the judgment of the President, to use the military force hereby directed to be called forth, the President shall forthwith, and previous thereto, by proclamation, command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited time” (emphasis added). The new law, by contrast, deleted the words “and previous thereto.”
3. Lastly, the new law removed the sunset clause. Unlike the 1792 law, which was temporary, the new 1795 replacement law was designed to remain on the books permanently. Nevertheless, the 1795 Militia Act would be amended in 1803 and would then replaced with a new use-of-force law in 1807. We shall thus review the Insurrection Act of 1807 in our next post.

We posed a provocative question in our previous post, where we asked whether President Eisenhower acted lawfully when he sent federal troops into Little Rock in the fall of 1957. Although the president is the “commander in chief” of the armed forces and has the power to enforce federal laws, at the same time Article I, Section 8 of the Constitution gives Congress–not the president–the power “to raise and support armies” and “to provide for calling forth the militia.” (See image below.) Nevertheless, Congress delegated this “calling forth” power to the president early in our nation’s history, when Congress enacted the first Militia Act of 1792, available here. (Congress enacted a second Militia Act a few days later.) In particular, the first Militia Act law spells out three different procedures the president must follow to call forth a militia, depending on the type of emergency he is responding to:

1. Invasion. When there is an invasion or an imminent threat of invasion, the president may act unilaterally to repel the invasion.
2. Insurrection. When there is an internal insurrection within a state, the president’s authority to use military force is subject to a state veto of sorts. Specifically, the president must first request authorization from the state legislature or from the governor, if the legislature cannot be convened in time, before calling forth the militia.
3. Execution of the laws of the union. In order to use military force to enforce federal law, the president must request a certification from an associate justice of the U.S. Supreme Court or from a federal district judge. Specifically, the associate justice or district judge must certify that the laws of the United States are being obstructed “by combinations too powerful to be suppressed by the ordinary course of judicial proceedings.” In addition, the president must also receive authorization from Congress. If Congress is not in session, however, then the president’s authorization to use force automatically expires “thirty days after the commencement of the ensuing session.”

In addition, the 1792 law imposed a proclamation requirement on the president. That is, in any of these three situations, whether it be a foreign invasion, an internal insurrection, or an obstruction of federal law, the president was required to issue a formal proclamation before using force: “whenever it may be necessary, in the judgment of the President, to use the military force hereby directed to be called forth, the President shall forthwith, and previous thereto, by proclamation, command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited time” (emphasis added).

Lastly, it’s also worth noting that the 1792 law contained a two-year sunset provision. Congress, however, reenacted the Militia Act on a permanent basis in 1795. Congress also took this opportunity to make several significant changes to the original law. We will thus review the 1795 replacement law in our next post.

Source: Michael McLaughlin

One of the most dramatic moments in our nation’s history occurred in sleepy Little Rock, Arkansas in the fall of 1957, when President Dwight D. Eisenhower sent 1,000 U.S. Army paratroopers from the 101st Airborne Division to restore order at Little Rock’s Central High School. But did Eisenhower have the legal authority to unilaterally send troops into Little Rock? In a televised address to the nation on 24 September 1957 (see video below), Eisenhower justified his historic decision on practical grounds: “Mob rule cannot be allowed to override the decisions of our courts.” But Eisenhower’s fateful decision to resort to military force poses many fundamental constitutional questions. What was the source of this power? In a word, was his use of force itself lawful? And if so, what are the limits, if any, to this power.

At that time (1957), the power of the president to deploy troops inside the United States was codified in Sections 331 through 335 of Volume 10 of the U.S. Code. (Today, this delicate power is codified at 10 USC Sections 251-255.) This legislation, in turn, can be traced back to the Militia Act of 1792, a law that was enacted over 200 years ago! President George Washington invoked this law when he responded to the infamous Whiskey Rebellion of 1794. The Militia Act was amended twice (in 1794 and in 1795) and was eventually replaced with a new domestic force law when another Founding Father, the polymath Thomas Jefferson, was still in office: the so-called Insurrection Act of 1807. In our next few posts, we will take a closer look at the texts of the 1792 Militia Act and the 1807 Insurrection Act.