[USSA News] Recently, both the big "mainstream" media and hundreds of alternative sources on the Internet have overflowed with the opinions of commentators, pundits, bloggers, public officials at all levels of the federal system, retired military officers, sports stars, and assorted "celebrities", concerning the authority (or lack thereof) of the President of the United States to intervene in the rampage of riots, looting, arson, and even killings which have plagued American cities following the homicide of Mr. George Floyd. The major lesson one learns from this palaver is that the writers and speakers generating it possess little to no real knowledge of the subject-matter, and apparently have no inclination to acquire any. That is both amazing and frightening. For, besides being of the highest importance, the subject-matter is so clear cut that anyone who has obtained a secondary-school education of the quality generally available prior to (say) 1970 should be able to understand it with a minimum of mental strain. The following points are intended to clarify the matter for anyone whose thinking needs clarification—FIRST. Article II, Section 1, Clause 7 of the Constitution of the United States mandates that "[b]efore he enter on the Execution of his Office, [the President] shall take the following Oath or Affirmation:—’I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.’" Everything which follows in this analysis comes within the purview of this "Oath".
SECOND. Article II, Section 1, Clause 1 of the Constitution provides that "[t]he executive Power shall be vested in a President of the United States of America." That is, all "executive Power", because the latter Clause recognizes no exceptions or exclusions.
THIRD. Article II, Section 2, Clause 1 of the Constitution provides that "[t]he 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[.]" The Constitution recognizes no one other than the President as the recipient of this status and authority.
FOURTH. Article II, Section 3 of the Constitution requires that the President "shall take Care that the Laws be faithfully executed". This is not only a duty, but also a power and a right (in the strict legal senses of those terms). Self-evidently, one manner of fulfilling this duty, and exercising this right and power, is for the President to take appropriate actions as "Commander in Chief" of the forces the Constitution places within his control.
FIFTH. Article I, Section 8, Clauses 15 and 16 of the Constitution delegate to Congress the power "[t]o provide for calling forth the Militia to execute the Laws of the Union, [and] suppress Insurrections", whereupon "such Part of the[ Militia]" as may be "call[ed] forth" is considered to "be employed in the Service of the United States".
SIXTH. Article I, Section 8, Clause 18 of the Constitution delegates to Congress the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution" not only its own "Power[ ]" "[t]o provide for calling forth the Militia", but also "all other Powers vested by th[e] Constitution in * * * any * * * Officer thereof", such as the "Power[ ]" of the President to "take Care that the Laws be faithfully executed".
SEVENTH. Section 1 of the Fourteenth Amendment to the Constitution provides (in pertinent part) that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." And Section 5 of that Amendment provides that "[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
EIGHTH. Pursuant to its powers recited above, Congress enacted the present Section 252 of Title 10 of the United States Code:
Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.
This is no novel contemporary piece of legislation, but derives from the Act of 29 July 1861, Chap. XXV, An Act to provide for the Suppression of Rebellion and Resistance to the Laws of the United States, and to amend the Act entitled "An Act to provide for calling forth the Militia to execute the Law of the Union," &c., passed February twenty-eight, seventeen hundred and ninety-five, 12 Stat. 281, and from the Act of 28 February 1795, Chap. XXXVI, An Act to provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections, and repel invasions; and to repeal the Act now in force for those purposes, § 2, 1 Stat. 424, 424.
Section 252, apparently, is what people who pontificate about the President’s authority are calling "The Insurrection Act". If so, the contention of critics that President Trump cannot rely upon this statute is balderdash—inasmuch as Presidents before him have invoked it successfully, with no widespread (or, really, any significant) outcry against the legality of their actions. See Executive Order No. 10730, 24 September 1957, 22 Federal Register 7628 (President Eisenhower); Executive Order No. 11053, 30 September 1962, 27 Federal Register 9681 (President Kennedy); Executive Order No. 11111, 11 July 1963, 28 Federal Register 5709 (President Kennedy); Executive Order No. 11118, 10 September 1963, 28 Federal Register 9863 (President Kennedy).
NINTH. Although 10 U.S.C. § 252 could apply under some circumstances to some of the disorders which have occurred in various States in recent days, it is not the statute which President Trump—were he well advised—should invoke to deal with the generality of riots, looting, arson, and even killings which Americans in those places have suffered. The statute which better fits the situation is the present Section 253 of Title 10 of the United States Code:
The President, by using the militia * * * shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—