The Volokh Conspiracy
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Mark Graber on the History and Original Meaning of the Militia Act of 1903
Graber shows that the act used by Trump to federalize the California National Guard does not allow the president to take this step in response to low-level violence and disorder.
In June, Donald Trump federalized 4000 California National Guard troops and deployed them to Los Angeles, ostensibly for the purpose of combating protests, unrest, and illegality in response to ICE deportation operations. The federal law Trump invoked - the Militia Act of 1903 - can only be used in the event of 1) "invasion" or danger of invasion by a foreign power 2) rebellion, or 3) a situation where the president is "unable with the regular forces to execute the laws of the United States." A district court rightly invalidated Trump's actions on the grounds that none of these three conditions actually existed in LA. But the US Court of Appeals for the Ninth Circuit overruled on the ground that Trump's assessment of the facts on the third issue deserves a high degree of judicial deference (though they did reject the administration's argument that such actions are left to completely unreviewable executive discretion). I criticized the Ninth Circuit ruling here.
In a just-published article, Prof. Mark Graber (Univ. of Maryland), a leading expert on post-Civil War era constitutional issues, has a valuable discussion of the history and original meaning of the Militia At of 1903. He shows that the Ninth Circuit got it wrong. Litigation over these issues continues (the district court and Ninth Circuit rulings only addressed a preliminary injunction). Moreover, the case could sent an important precedent for future executive efforts to use the military for domestic law enforcement - a very dangerous form of emergency power.
Here is Graber's summary of his conclusions:
Americans from the ratification of the Constitution to the passage of the Militia Act of 1903 recognized that Congress could empower the President to federalize state militia only under the wartime or wartime analogue conditions under which Congress could empower the President to impose martial law. These conditions were limited to a foreign invasion, a domestic rebellion, or some other violent uprising that caused judicial proceedings in part of the United States to be suspended. The state militia federalized by the Militia Act were expected to confront troops or the equivalent, not criminals or scattered violent protestors. Interpreting the Militia Act of 1903 or any other federal measure, to give near absolute discretionary power to the president to determine when vast wartime powers may be exercised, [The Supreme Court's ruling in] Ex parte Milligan noted, would subvert the strict limitations of in the militia acts and threaten constitutional democracy in the United States by enabled the president and subordinates to "substitute military force for and to the exclusion of the laws," and govern as they "think right and properly, without fixed and certain rules."
The article isn't long. Anyone interested in this important issue should read the whole thing!
