Emergency Power and the Militia Acts
Vladeck, Stephen I., The Yale Law Journal
CONTENTS INTRODUCTION I. THE FIRST MILITIA CLAUSE AND THE MILITIA ACTS A. The Constitution and Emergency Power B. "Calling Forth" the State Militias: The 1792 and 1795 Militia Acts C. "Calling Forth" the Federal Army: The 1807 and 1861 Acts D. Martial Law, Habeas Corpus, and the Ku Klux Klan II. THE MILITIA ACTS, THE COURTS, AND EMERGENCIES A. Martial Law in the Early Republic: Mott and Luther B. Emergency Power During the Civil War 1. The Militia Acts and Martial Law: Field and the Trigger Problem 2. The Importance of the Prize Cases 3. Milligan and a Suggested Trigger C. The Problem of "Inherent" Presidential Power: Debs and Neagle III. THE MILITIA ACTS, EMERGENCY POWER, AND THE ACADEMY A. Corwin, Fairman, and the Misreading of the Prize Cases B. Steel Seizure, the Misunderstanding, and Emergency Power Today CONCLUSION The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority. (1)
Terrorist cells in Brooklyn carry out an escalating series of terrorist attacks on New York City over the course of several weeks. After the third such attack, which destroys the FBI's New York headquarters and kills hundreds, the President declares a state of martial law in Brooklyn, imposes a curfew, rounds up individuals of Middle Eastern descent, and subjects the borough's two-million-plus residents to harsh, restrictive military rule--including the torture of several suspects--until the remaining cells are hunted down and destroyed. Borrowed from the eerily prescient 1998 movie The Siege, (2) this scenario raises some extraordinarily serious and difficult legal questions.
Among them, what are the limits of such executive military authority, insofar as both time and scope of power are concerned? Are there any? Can there be any? What role can courts, if they are even open, play during such a crisis? What remedy is there for violations of whatever constitutional mandates still apply? Who gets to say when the crisis is over? Most importantly, where would we start, the morning after, in trying to answer these questions, or even in trying to pose them?
Many contemporary scholars argue either that most emergency powers described above are inherently executive (because they follow from the Vesting Clause, the Oath Clause, the Commander-in-Chief Clause, or the Take Care Clause) (3) or are extraconstitutional (i.e., they apply when the Constitution does not). (4) Invoking the specter of Jefferson (5) or Lincoln, (6) many writers today seem content with the assumption that, whether such authority is extraconstitutional, there is little question that the bulk of emergency power belongs exclusively to the Executive, and that the Constitution, to whatever degree it speaks to the issue, does not suggest otherwise. (7) Lost in this ongoing exchange about the government's crisis authority, however, are two basic questions: What emergency powers does the Constitution actually provide, and in which branches are they vested? (8)
This Note takes up these questions in the specific context of a vital subset of emergency powers: the power to use military force in responding to domestic crises, including the imposition of martial law. It suggests that the contemporary understanding, at least insofar as it holds that most constitutional emergency powers belong to the Executive, fails to account for this important area. Specifically, the Note argues that this subset of presidential emergency power is traceable to a series of statutes passed by Congress in 1792, 1795, 1807, 1861, and 1871. (9) These "Militia Acts," enacted largely pursuant to Congress's authority under the First Militia Clause "[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions," (10) delegated broad swaths of emergency power to the President, especially the power to impose martial law and suspend the writ of habeas corpus during serious internal crises. …