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in society is not within the powers confided to the Gov-
peace to that extent.? The view of Executive power expressed in Siebold was applied a decade later by the Supreme Court when it held that even in the absence of congressional enactment, the President was authorized to direct United States marshals to protect a threatened Federal judge. The Court based its decision on the President's implied power in executing the laws to enforce the “rights, duties, and obligations growing out of the constitution itself,” and to provide "all of the protection implied by the nature of the government under the constitution.” 24
The issue of Executive power to compel obedience to Federal law was again raised in the famous Pullman Railway dispute when the Pullman workers struck and the American Railway Union supported them by refusing to handle Pullman cars.25 A Federal court in Chicago issued a sweeping injunction against the strike and troops were used to enforce the order. In upholding the authority of the President to seek the injunction, without statutory authority, the Court again applied Siebold:
The entire strength of the nation may be used to enforce
Ex parte Siebold, 100 U.S. 371, 394-95 (1880).
See Rich, The President and Civil Disorder, 91-109 (Brookings Institution, 1941) (hereinafter cited as Rich).
national powers and the security of all rights entrusted
service of the nation to compel obedience to its laws.” Although the President's authority to use force is phrased in the broadest terms, it is not unlimited. In enforcing the Constitution and statutes, the President must interpret their meaning and scope, as well as the breadth of his own powers. Thus, his decisions will inevitably take cognizance of congressional action and judicial interpretations, as well as the precedents of Presidential action. These interpretations by each branch of the Federal Government help define the scope of the President's authority, and, as a practical matter, establish the boundaries within which he is likely to exercise his power, even if he is not so limited by law. Congressional Definition of the President's Power to Use Federal Force
Congress, as well as the courts, has repeatedly sustained in broad terms the use of force by Presidents to execute Federal
Beginning in 1792 a series of congressional enactments
20 In re Debs, 158 U.S. 564, 582 (1894).
Although Congress did limit the power of the President in suppressing domestic violence by restricting his discretion to call out the militia of a State other than that where the violence was threatened, Act of May 2, 1792, ch. 28, § 2, i Stat. 264, this limitation was repealed in 1795. See Act of Feb. 28, 1795, ch. 36, § 2, i Stat. 424. There are several other enactments which might be understood to constitute such a limitation but which in fact do not. (1) By the Act of Feb. 8, 1894, ch. 25, 28 Stat. 36, the election laws of 1871 (Act of Feb. 28, 1871, ch. 99, 16 Stat. 433) were repealed. The repeal of the entire law naturally included a repeal of the specific authorization ($ 8) for the use of marshals to enforce it. (2) By the Act of March 4, 1909, ch. 321, 22, 35 Stat. 1092, 18 U.S.C. § 592, the use of "troops or armed men” at elections was prohibited. The House managers of the bill said that this “does not in any sense diminish the force of existing law." H.R. Rep. 2319 to accompany S. 2982, 60th Cong., 2d Sess. (1909). (3) By the Act of Sept. 9, 1957, § 122, 71 Stat. 637, the Act of May 31, 1870, ch. 114, § 13, 16 Stat. 143, was repealed. The Act had permitted the President to use
have expressly authorized the President to use force in domestic disturbances and particularly in circumstances similar to those described in this report. These statutes have added weight to the President's authority, for, as Mr. Justice Jackson has said:
When the President acts pursuant to an express or implied
sonify the federal sovereignty.28 Congressional efforts to define the situations in which the President may directly use Federal force to execute the laws without a request from a State are codified as sections 332 and 333 of title 10 of the United States Code.
10 U.S.C. Section 332
In 1792 Congress enacted a statute authorizing the President to use States' militia when the execution of the laws of the United States was opposed by combinations too powerful to be suppressed either by the ordinary course of judicial proceedings or by marshals.29 The circumstances of its passage and its development into the present 10 U.S.C. section 332 suggest how broadly Congress conceived the President's power, and the situations in which it has been used establish its practical scope.
military force under certain circumstances. The repeal was justified by Senator Humphrey, who introduced it, on the ground that, “There is plenty of other appropriate law, besides Reconstruction law, available for the President's use." 103 Cong. Rec. 11979 (1957). (4) By the Act of June 18, 1878, ch. 263, § 15, 20 Stat. 145, 152, 18 U.S.C. § 1385 (1964), the use of the army as a posse comitatus was prohibited. This provision has been consistently interpreted simply as a limitation on the ability of United States marshals to use Federal troops as a posse without prior Presidential or congressional authorization. See 7 Cong. Rec. 3846–49, 4240–48 (1878); 16 Ops. Att’y. Gen. 162–64; 17 Ops. Atty. Gen. 242–44, 333–35; 19 Ops. Atty. Gen. 293–96, 570–71; 41 Ops. Atty. Gen. 313, 329–30. ** Youngstown Sheet & Tube Co. v. Sawyer, supra at 635-36.
Act of May 2, 1792, 1 Stat. 264.
Cj. Frankfurter, J., concurring, in Youngstown Sheet @ Tube Co. v. Sawyer, cupra at 610–11 (1952).
The Act of 1792 was aimed at domestic disorder which interfered with the execution of Federal law.31 There was little opposition to the essential principle of the bill." Several years later, following a rebellion against the collection of whiskey excise taxes in western Pennsylvania, Congress broadened the Act to give the President greater flexibility and discretion with respect to calling the militia to suppress domestic disorder.34 The Act was again broadened in 1807 by authorizing the President to use Federal troops whenever he could use the militia.35 In 1861 the Act was amended once more to provide that the determination of the need for Federal force depended only upon “the judgment of the President of the United States.” 38 The purpose of this amendment was to make clear that the President was the sole judge of the exigency requiring the use of troops.87
Thus, the 1861 Act represents the culmination of an expanding concept of Presidential discretion in the deployment of Federal force for domestic purposes.
38 It confirmed in the President all the powers he might lawfully exercise under the Constitution with respect to the use of "the militia" or the "land and naval forces” of the United States. The statute reads as follows:
Whenever the President considers that unlawful obstruc-
* One of the moving forces behind passage of the Act was Shay's Rebellion, which had ended five years before. See Wilson, Federal Aid in Domestic Disturbances, 1903–1922, S. Doc. No. 263, 69th Cong., 2d Sess. 9–24 (1922) [hereinafter cited as Federal Aid].
* Annals of Congress, 1791–1793, at 574–79.
Act of Feb. 28, 1795, ch. 36, § 2, i Stat. 424. The Act authorized the President to call the militia from any State and also to make the determination of the need for action without a recommendation from a judge.
Act of March 3, 1807, ch. 39, 2 Stat. 443.
31 Cong. Globe 146, 37th Cong., Ist Sess. (1861) (remarks of Rep. Bingham). * Id. at 145. Representative Bingham, the principal sponsor of the amendment, cited several acts which had contributed to this development: Act of March 3, 1803, ch. 32, § 1, 2 Stat. 241; Act of April 18, 1806, ch. 32, § 1, 2 Stat. 383; Act of March 30, 1808, ch. 39, $$ 1, 5, 2 Stat. 478-79; Act of April 10, 1812, ch. 55, SS 1, 4, 2 Stat. 705-06.
the authority of the United States, makes it impracticable to enforce the laws of the United States in any State or Territory 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.39 From 1792 to 1860, on at least 10 occasions, Presidents, without being requested by a State, exercised their authority to suppress violent opposition to the laws of the United States. 40 Most of these instances involved violent interference with Federal officials in their efforts to execute Federal laws. Several, however, such as the Slave Insurrections of 1831" and the disturbances in Kansas in 1856,42 involved general violence which was suppressed by Federal troops. On each occasion the President issued a proclamation declaring that violence prevented the enforcement of Federal law by the normal course of judicial proceedings and sent militia or troops to restore order.“ Significantly, court orders were not involved in any of these cases, nor was any special finding made with respect to the willingness or ability of local officials to carry out Federal law or to protect Federal officials.44
Even after the Civil War and the enactment of 10 U.S.C. section 333, which is discussed below, Presidents continued to invoke section 332 to suppress violence.95 But the pattern of the use of Federal force is different in the latter period. Before the Civil War, force was used most often in situations which threatened the supremacy of Federal law, and, in some instances, the existence of the Union. Following the War, however, the principal use was to suppress general violence unrelated to interference with specific Federal laws. Since 1957, the necessity of enforcing
Ibid. *5 Jackson Brief 83-89; Rich 72–204; Federal Aid 94–204.