181. Courts and Domestic Use of the Military

In response to adverse judicial rulings, the President's advisers and supporters are claiming courts lack the power to halt domestic use of the military. A critical early precedent is to the contrary.

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I wanted to put out a quick issue this morning in light of Judge Karin Immergut’s remarkable ruling yesterday, granting a temporary restraining order against President Trump’s federalization of members of the Oregon National Guard to quell the “violence” in “war-ravaged Portland.” That ruling has prompted a slew of claims this morning from the President’s advisers and outside supporters that federal courts, in general, lack the power to halt domestic deployments of the military.

Before this claim makes it too far, it seems worth helping to educate folks about a key early precedent that, in my view, cuts entirely in the other direction—and that provides powerful evidence, to those who care about such things, that the Founding-era understanding not only tolerated a robust judicial role in such cases, but, for a time, actually required one. That’s not to say Judge Immergut’s specific analysis in this case is correct (although I’m sympathetic); it’s to say that there is nothing categorically inappropriate about federal courts reviewing—and, where necessary, halting—domestic uses of the military while they are ongoing. Indeed, it would be striking if it were otherwise.

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The modern-day Insurrection Act traces its lineage all the way back to a statute Congress enacted on May 2, 1792—which has often been referred to as the Calling Forth Act or First Militia Act. That statute was designed to carry into effect the Constitution’s grant of power to Congress, in Article I, Section 8, Clause 15, “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

The idea was that Congress would identify the circumstances in which military power could be used domestically—and would thence delegate that power to the President. As Justice (Robert) Jackson would remind us in his concurring opinion in Youngstown, the Clause’s “limitation on the command power, written at a time when the militia rather than a standing army was contemplated as the military weapon of the Republic, underscores the Constitution’s policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy.”

But how, exactly, should that delegation work? This question was the subject of a rich debate in the Second Congress—one that culminated with the 1792 statute. I’ve summarized that debate elsewhere; for present purposes, the key point is that Congress’s principal concern was not with the last two circumstances in which it was to delegate power to the President (“to suppress Insurrections and repel Invasions”), but with the first circumstance (“to execute the Laws of the Union”). And the way Congress addressed its concerns was to delegate the authority to use the military, but with meaningful procedural checks.

Here’s the full text of section 2 of the act, image first; block quote second, with the key provisions highlighted:

[W]henever 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 same being notified to the President of the United States, by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session.

In other words, unlike section 1 (which dealt with insurrections and invasions), section 2 imposed two procedural requirements on domestic use of the military to carry out the laws of the union: a district judge or Supreme Court justice had to make the requisite factual findings before the President could do anything;¹ and, if out-of-state militia were used, there was a baked-in sunset.

Even though the Congress that enacted the 1792 act was full of folks who were either at the Constitutional Convention (and helped to draft that document) or who were central in the ratification debates, my research found no evidence that members made constitutional objections to the judicial review that section 2 required. And President Washington, in putting down the Whiskey Rebellion two years later, followed the statute’s mandates to the letter—obtaining the requisite judicial determination from Supreme Court Justice James Wilson (one of the six people to sign both the Declaration of Independence and the Constitution) before he sent troops to Western Pennsylvania to restore order.

The 1792 act was written as a temporary experiment. Congress decided to delegate comparable authority on a permanent basis in 1795—and, alas, removed the ex ante judicial review requirement. But there was no suggestion at the time, and I’m unaware of any since, that the provision was eliminated for constitutional reasons—as opposed to Congress’s broader (if, alas, myopic) view that the checks weren’t needed in light of how responsibly President Washington had behaved during the Whiskey Rebellion.

Thus, although there are later examples of courts issuing injunctions against domestic uses of the military (Youngstown itself stands out as a fairly prominent example), the relevant point for present purposes is that there was no Founding-era aversion to a robust judicial role in these cases. The first statute Congress ever enacted on the subject required such a role, and there was no contemporaneous suggestion that the Constitution forbade it.

I am, as regular readers of this newsletter likely know, no great fan of “originalism” as a conclusive methodological approach to constitutional interpretation. Thus, the way that I tend to think about these things, the existence of the judicial review provision in the Calling Forth Act of 1792 is useful evidence of how the Constitution was understood at the time, but nothing more. Rather, the argument for judicial review being available to halt, where necessary, unlawful domestic uses of the military rests on a lot more, in my view, than what some folks believed more than 230 years ago.

But for those who ascribe to the view that we are, today, bound by how the Constitution was understood then, I do not see how one can reconcile the 1792 precedent with any claim that prospective judicial review is categorically precluded when it comes to domestic use of the military. And given current and recent events, such review, if anything, seems more important than ever—whatever its outcome.

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Stay safe out there, all.

1. Recall that, other than during a brief period between 1801 and 1802, there were no standalone circuit judges until 1866; thus, the reference to a district judge or justice was capturing all of the relevant federal judges.