Source of Presidential Power to Deploy the National Guard to Help Enforce Federal Law

The first sentence of Article II (Executive), Section 2, Clause 1, 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 …”

Herein lies the source of the power to call up state militias, which are now called the National Guard. In the wake of the Whiskey Rebellion, our Founding Fathers went a step further when the 2nd U.S. Congress passed the Militia Act of 1792.

In Article I, Section 2 of the Militia Act of 1792, it states “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”. The term “marshals” referred to any law enforcement officer.

At the time the Militia Act of 1792 was passed, Washington was President, and the Federalists had control of both the House and Senate. Congress wanted to make sure that the President of the United States could deploy the state militias at any time to protect U.S. citizens who were, at the time, being attacked by Native Americans in the Northwest Territories when the United States did not have a standing Army or Navy. The legislation to create a standing U.S. Army and Navy would not come until 1794.

Fast forward to 1807, when our Founding Fathers took a significant step further to give the president to step in when states fail or are unable to enforce U.S. and state laws. Jefferson was in the White House, and his Democratic-Republicans had majorities in both the House and the Senate. The law, now codified in Title 10, Sections 251, 252, and 253 of the U.S. Code enables the President to mobilize the National Guard for law enforcement purposes under any one of three conditions:

If requested by a state’s legislature or governor to address an insurrection against the state;To suppress an insurrection in any state that makes it impossible to enforce the law; andTo put down an insurrection, domestic violence, unlawful combination or conspiracy in any state or states which results in the deprivation of any individual’s constitutional rights where the state is unable, fails, or refuses to protect said rights.

To use Sections 2 and 3, the President doesn’t need the acquiescence of the state’s governor or legislature. Once he activates, the term is Federalize, the National Guard, the units report to him as the commander-in-chief of the U.S. military.

The Insurrection Act of 1807 has been modified twice. In 1871, clauses were added to U.S. law to protect African Americans from the actions of the Ku Klux Klan, and then in 2016 to add coverage to the U.S.’s Trust Territories of Guam and the U.S. Virgin Islands.

For the record, the Insurrection Act of 1807 has been upheld by the Supreme Court on numerous occasions. It was used by President Lincoln in 1863 to use the U.S. Army to quell anti-draft riots. In 1932 when President Hoover employed it to disband the Bonus Army.

President Eisenhower used the National Guard to enforce desegregation in 1954. Thirteen years later, in 1967 President Johnson called out the National Guard to put down race riots in Detroit and Newark, and then in 1968, riots following the assassination of Martin Luther King. Then, in 1992, the National Guard was called out by President George H.W. Bush to quell the L.A. riots.

For those politicians who rail against any President using the National Guard to help Federal Authorities enforce Federal law, it would behoove them, as well as judges who rule on their filings, to read the Constitution, the Insurrection Act of 1807 as well as the appropriate sections of the U.S. Code, specifically Title 10, Sections 251, 252 and 253. If they did, then they wouldn’t make stupid statements that assume that We the People don’t know the law.

Photo titled LA Riot Aftermath by Mick Taylor.

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