How the Militia Clauses Inform the Scope of the Commander in Chief’s Inherent Power?
Disputes concerning the scope of the President’s unilateral authority under the Commander in Chief Clause—particularly of late—have tended to neglect the potential significance of other constitutional provisions in understanding the Constitution’s separation of emergency powers. Perhaps no provision has been more neglected in this discourse than the so-called “Calling Forth” Clause of Article I, which empowers Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” As Justice Jackson explained in his Steel Seizure concurrence, Such a 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. And yet, except as it pertains to debates over the original understanding of the Second Amendment and the authority to deploy National Guard units overseas, Congress’s constitutional power to provide for the use of the militia during these three types of domestic crises has been overlooked in almost every contemporary assessment of the President’s inherent war powers, to the point where scholars too numerous to count have accepted without qualification the argument that the President possesses at least some independent authority to use military force in domestic emergencies—assuming that such power derives, most naturally, from the Commander in Chief Clause.
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In fact, since 1792, Congress has provided specific statutory authorization for military deployments in the cases contemplated by the Calling Forth Clause, first through the militia (which President Washington called forth to help put down the Whiskey Rebellion) and subsequently through the “regular” federal army (as the unreliability of the militia became increasingly clear). And even in the Prize Cases (1863), in which the Supreme Court famously recognized the President’s power to repel sudden attacks, it attributed at least some of that authority not to the Commander in Chief Clause, but to these statutes, by which “he is authorized to call[] out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States.” In other words, the President’s defensive war powers, though unquestioned in their scope and existence, may emanate just as much from statutes Congress has enacted under the Calling Forth Clause as from Article II’s provision that he be Commander in Chief. The more interesting question is why the Calling Forth Clause has disappeared from our modern view of how the Constitution separates war powers. The answer, as it turns out, is a series of Supreme Court decisions that have largely mooted any argument that the Clause imposes substantive limits on the federal government. Thus, in a pair of 1918 Supreme Court rulings—the Selective Draft Law Cases and Cox v. Wood—the Justices concluded that the Calling Forth Clause does not in fact limit the circumstances in which the government may call out the militia, upholding the constitutionality of a draft designed to recruit soldiers to fight in World War I, a purely foreign conflict. Thus, although the Framers may well have intended the Calling Forth Clause both to cement the militia’s exclusive role in responding to domestic emergencies and to prevent their federalization for other purposes, the 1918 decisions largely vitiated that structural reading by concluding that the militia could also be called forth to fight in foreign wars.
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More recently, in Perpich v. Department of Defense (1990), the Supreme Court held that members of the National Guard are, for constitutional purposes, federal regulars when called into the active service of the United States—and, like the militia in the 1918 cases, may therefore be deployed for purposes other than those outlined in the Calling Forth Clause. Perpich therefore suggests that, at least under the Guard’s dual enlistment system, the Calling Forth Clause is effectively a non-starter; the constitutional text simply doesn’t matter because there is virtually no situation today when the “militia,” at least as the Supreme Court has interpreted the term, is actually being “called forth,” and federal regulars may be called forth even in those contexts in which the Calling Forth Clause might otherwise have been read to require utilization of the militia. But whereas the Supreme Court has largely vitiated the Calling Forth Clause’s potential role as a structural check on other uses of military power, the Clause remains relevant today in helping to cement Congress’s constitutional authority to circumscribe the President’s domestic war powers—authority it has exercised in a number of circumstances, including through the Posse Comitatus Act of 1878, which requires express authorization from Congress before the military may be utilized in a domestic law enforcement capacity. After all, if the militia was initially intended to be the primary (if not exclusive) response force for a domestic emergency, and if Congress was given the power to provide for their calling forth (and, through the other Militia Clause, their regulation), then the Constitution appears to resolve in Congress’s favor any argument that such statutory limitations unconstitutionally infringe upon the President's constitutional authority as Commander in Chief. So construed, the Calling Forth Clause undermines the ever-more-visible arguments in favor of strong and unilateral domestic presidential war powers. Of course, there can simply be no question that the Constitution empowers the federal government, acting in 3
concert, to act decisively—and expeditiously—during domestic emergencies; the Constitution, after all, “is not a suicide pact.” But it is not nearly as straight a line from accepting that point to accepting a sweeping and potentially preclusive domestic Commander in Chief power. To the contrary, the reality is that the Constitution expressly envisions a role for Congress to play in providing for governmental responses to even the most existential crises at home, however lost to modern eyes. This dramatically undermines arguments evoking a broad and unilateral authority for the Commander in Chief in the circumstances contemplated by the Calling Forth Clause, i.e., “to execute the Laws of the Union, suppress Insurrections and repel Invasions.”
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