Militia, Insurrection Acts Give Trump Authority to Protect Americans

One of the biggest differences between traveling abroad and traveling domestically is seeing armed soldiers at airports and on the streets in most other nations. While this is still fairly true, it is not the case if you are traveling to our nation’s capital, and possibly soon to Portland or Chicago.

President Trump justifies using troops or the National Guard to protect federal agents, like ICE, because he believes leaders in those cities lack either the ability or desire to curtail the rampant violence plaguing their cities.

As always, Trump’s critics cry tyranny, comparing him to Adolph Hitler and the SS. They claim this is beyond Trump’s authority and that presidents do not have the right to use troops in our cities. Contrary to these criticisms, the president does have authority, to a certain degree, just like the 20 or so presidents did before him who did the same thing.

As always, first, our Constitution. The Constitution here gets tricky because you must put two parts together to get the full picture.

Article I, Section 8, Clause 15, states that Congress shall have power “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions,” and in Clause 16, “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.” In other words, its Congress’ responsibility to call out the troops if it’s necessary to “execute the Laws.”

However, the president also has a role here. In Article II, Section 2, it 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.”

So, if you put the two sections together then it’s Congress’ job to call out the militia, but once called, it’s the president’s job to command. It also clearly states enforcing the law is a reason for using the militia/Guard.

If our Constitution was the only legal document, then Trump would be in violation of it for using troops in Chicago and Portland unless Congress first called them out. However, there are also legal statutes that augment presidential authority.

In the Militia Act of 1792, Congress authorized the president to call out state militias to suppress insurrections or enforce federal laws when normal law enforcement are unable. A few years later, in 1807, Congress amended the Militia Act with The Insurrection Act that authorized the president to use federal troops (or federalized National Guard) within the U.S. under specific situations: to suppress insurrections against the U.S. government; to enforce federal law when it’s being obstructed; and to protect civil rights when state authorities cannot or will not act (added in 1871). As this act changes the constitutional interpretation, there are examples of each.

As for insurrections, in November of 1860, after Abraham Lincoln was elected, seven Southern states seceded from the Union. Upon secession, they claimed all United States property as their own. Then five months later, after the Confederacy opened fire on Fort Sumter, Lincoln invoked the Insurrection Act by calling up the militia and asking for 75,000 troops to squash the rebellion.

As for enforcing the law, in 1791, as part of his economic plan to fix the nations finances, Alexander Hamilton pushed an excise tax on distilled spirits through Congress. This tax hit Western farmers the most as turning their grain into alcohol was a major part of their income.

Taking a lesson they learned from the Revolutionary War, when government unfairly taxes you, you have the right to fight back. The problem is that theory only works if you win. Western farmers, especially in Pennsylvania, organized themselves and attacked tax collectors and courthouses in protest in what became known as the Whiskey Rebellion. Local law enforcement either could not or — because of local alliances — would not stop the armed gangs.

To deal with the lawlessness, President Washington invoked the Militia Act and personally led the Army part of the way to Pennsylvania. With the show of force, most of the mob melted away. A few ringleaders were captured but later pardoned by Washington. He had gotten his message across: there was a new sheriff in town, and this new government would not tolerate lawless behavior.

As for protecting civil rights, President Eisenhower used it in 1957 when nine Black students known as the “Little Rock Nine” tried to attend Central High in Little Rock, Arkansas. Governor Orval Faubus would not allow the Black students to enter the school and called out the National Guard to block their entrance. As segregation was by that time illegal, Eisenhower called on all involved to “cease and desist” blocking the students but his warnings were ignored. In reply, Ike invoked the Insurrection Act by not only federalizing the Arkansas National Guard, but also sending in the 101st Airborne Division to restore order. Notice in this case, it was against the wishes of the governor.

Most Americans agree with the past presidents’ decisions now, while many also are criticizing and protesting that Trump is a dictator. Yet interestingly enough, at the time, none of the three examples were popular where they happened. Washington, Lincoln and Eisenhower all were called dictators, too.

If Trump believes local law enforcement cannot or will not protect ICE agents or guarantee Americans’ basic civil rights, then what he is doing is no different than earlier presidents. If it was legal and moral for presidents back in the day, it must be the same today.

James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at HistoricallySpeaking1776@gmail.com. Thanks to Southwest Ledger for sharing his column.