Presidential Power to Recall the National Guard Is in the Constitution
Before there was a National Guard, there were state militias. Before them, there were state militias, and before them, there were colonial militias.
For the record, calling out the National Guard and/or the state militia to quell domestic violence is not new. In 1794, President George Washington mobilized militias from four states to control a rebellion by citizens against what they thought was an excessive tax on whiskey. See 8/1/21 post (# 121) Whiskey Tax Leads to Rebellion – https://marcliebman.com/whiskey-tax-leads-to-rebellion/ for more about this event.
More recently, the National Guard – the direct descendant of the state militias – was called out in 1967 to help put down the riots in Detroit. Again, in 1968, after Martin Luther King was assassinated, National Guard units were called into action. In 1992, they were used to help quell the riots in LA.
So, where does the President get this power? In Article II, Section 2, Clause 2 of the Constitution of the United States, The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States…
As a National Guard soldier or airman, one is subject to the orders of the President, even though when not recalled to active duty or “Federalized,” the Air and Army National Guard reports to the state’s governor. The National Guard is equipped, trained, and funded primarily by DOD.
The second source of the President’s authority to deploy the militia (and now the National Guard) begins with the Militia Acts of 1792, revised in 1795, then again in 1808, 1862, and 1903, to name just a few times it has been reconfirmed and/or expanded.
The first Militia Act of 1792, Article I, Section 1 gave the President the power to call out state militias whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe…
Section 2 of Article 1, gives the power to order the militias to active duty whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act…
Marshals refers to law enforcement officials. The act also requires the President to order the mob to disburse and leave the scene peacefully within a specified time before he can recall the militias.
The second Militia Act of 1792 authorized what we would call a draft in time of war and required members of the militia to provide their own equipment. It also gave specifics on the equipment each militiaman must have and established an org chart for each militia unit.
The Militia Act of 1795 tweaked both of the 1792 acts and, most importantly, gave the President’s permanent power to call up the militia under conditions listed in the act. While the President’s role as commander in chief of the militia was open to interpretation to some, the Militia Act of 1903 put that to rest. Known as the Dick Act, the President of the United States is the commander-in-chief of the National Guard and has the power to order them to active duty. The President can order any National Guard unit to active duty to repel invasion, suppress rebellion, or enforce federal laws.
The Dick Act has been updated several times, but the power given to the President has not changed. All this leads one to wonder if several state governors or their lawyers have ever read the Dick Act or any of its modifications that increase the power of the President in this regard?
Don Troiani painting, Stand Your Ground, April 19th, 1775, courtesy of the National Guard Bureau.
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