Last week, in the first of a series of five posts, I attempted to survey the broad question of what “martial law” actually is. Today, in the second post in the series, I turn to the closely related question(s) of where the federal government’s authority to impose martial law derives from, and whether such authority is consistent with the Posse Comitatus Act.
First, the short answer: In a trilogy of cases decided during the nineteenth century–Houston v. Moore, Martin v. Mott, and Luther v. Borden–the Supreme Court traced the “martial law” power to a series of statutes enacted by early Congresses, particularly the Calling Forth Act of 1795 and the Insurrection Act of 1807, that provided for the calling forth first of the militia, and later of the federal armed forces, to suppress insurrections and “execute the Laws of the Union.” [For more on the origins of the Acts, see here.] In short, Justice Story in Mott and Chief Justice Taney in Luther both suggested that the power to call out troops to respond to domestic crises included the authority, when circumstances rendered it necessary, to impose martial law. An 1857 Attorney General opinion by Caleb Cushing reasserted the same view.
Today, these statutes are generally referred to as the Insurrection Act, and are codified at 10 U.S.C. §§ 331-335. [Note that this is the unamended version of 333.] Although the statutes nowhere expressly reference “martial law,” it is fairly widely accepted that, where conditions warrant, the authority to use the federal military (and the National Guard) to “restore public order” comes from these provisions.
That martial law would therefore have statutory authorization provides one fairly straightforward answer to the Posse Comitatus question, since the PCA excepts “cases and . . . circumstances expressly authorized by the Constitution or Act of Congress.” Moreover, any argument that the Insurrection Act isn’t “express[]” authorization is belied by the legislative history of the PCA, in which it was repeatedly reiterated that the Act would not prevent domestic use of the military when authorized by the Insurrection Act. [This, by the way, is why a lot of the post-Katrina posse comitatus discussion was beside the point; the Stafford Act provided more than enough statutory authorization for use of the federal military for domestic disaster relief.]
The much harder question, as it turns out, is the constitutional question. The Calling Forth Clause of Article I clearly empowers Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” But ever since the 1807 Insurrection Act, the statutory authority has extended to use of the federal armed forces, as well. Thus, the constitutional question: What is the source of Congress’s authority to empower the President to use the federal military to respond to domestic emergencies?
The closest the Supreme Court has come to answering that question is in pair of decisions from World War I–the so-called “Selective Draft Law Cases” and Cox v. Wood. In both cases, the Court construed the Militia Clauses together with Congress’s power to raise armies, unanimously concluding that the Calling Forth Clause did not substantively limit Congress’s power to subject citizens to a draft and to send drafted citizens overseas. At the heart of Chief Justice White’s opinion in both cases was the notion that the Calling Forth Clause was an additional grant of power to Congress, and not a restriction thereof, a point Justice Stevens would reiterate
Comments
Joe — I actually think it’s precisely the same issue. I agree that there is an argument that, in the absence of any legislation on the subject, the Take Care Clause may indeed furnish a temporary inherent presidential emergency power. But the argument that Congress _can_ legislate in the field of domestic use of the military during emergencies is an argument _against_ a broad reading of the Take Care Clause whenever Congress _has_ so legislated. Given that there has been at least some general statute authorizing the use of military force during domestic emergencies since May 1792, that’s a pretty important counterargument to contemporary views of broad and unilateral Article II power.
Posted by: Steve Vladeck | Mar 18, 2007 9:33:10 PM
Justice Jackson’s reference to the “war power” notwithstanding, why doesn’t the “Take Care” Clause of Art. II justify the use of the federal armed forces to enforce the law? In other words, authorizing the President to use the federal armed forces domestically merely ratifies the President’s authority under Art. II. Arguably, Congress could use its powers under Art. I to forbid the President from using federal armed forces domestically, but that’s a different issue.
Posted by: joe | Mar 15, 2007 11:06:53 AM