Commander of Militia

            The topic of discussion for this Constitution Monday comes from Article II, Section 2, Clause 1:  "The President shall be Commander in Chief … of the Militia of the several States, when called into the actual Service of the United States…."  This provision in the Constitution gives the President the authority to control the militias from the states as well as the military forces in the army, navy, and air force during war or peace.

"The Framers of the Constitution crafted a complex network of provisions dealing with the militia.  They believed that there should be a national army, but that resources and politics dictated that the militia would provide the bulk of the forces needed to defend the country.  Although they were sensitive to the fear of a standing army and the political concerns of the states, there was one principle on which they agreed:  when the states' militias were needed to defend the country, the President, and not the governors, would be in charge.  The phrasing of the President's power changed over the months in Philadelphia, but the exclusivity of the President's power was never questioned.  The most significant change came from Roger Sherman, who moved the addition `and of the Militia of the several States, when called into the actual service of the US.'  This assured that the President could not take the militia away from the states except when properly called forth by Congress under Article I, Section 8, Clause 15.

"In 1792, Congress passed the Uniform Militia Act, also known as the `calling forth' act, permitting the President to call out the militia to put down insurrections or rebellions.  This power was initially limited to those events that could not be handled by judicial proceedings or by marshals in the exercise of their duties.  The act also required a district judge to certify that circumstances were beyond the control of lawful authority and required the President to alert the insurrectionists to end their activities before the militia could be called out….

"In 1795, Congress passed another militia act, aimed at giving the President the power to call out the state forces in the event of insurrection.  This law did away with the certification requirements (but retained the requirement of alerting the insurrectionists to disperse) of the 1792 law and granted the President the authority to call forth the militia when the nation was invaded, in imminent danger of invasion, or when faced with `combinations' against the nation.  The key provision of that law was `That whenever it may be necessary, in the judgment of the President, to use the military force hereby directed to be called forth….'"

The militia was called into service during the War of 1812 by President James Madison, and the New England states threatened to secede.  Secretary of State James Monroe "argued that when the militia is called into the actual service of the United States, all state authority over that militia ends" and the members are "paid by the federal government" and "subject to the same control as regular army personnel…."  The Monroe position was supported by the U.S. Supreme Court in 1827.

During the Civil War, governors again resisted the President's call for the militia; after the Civil War the militias "began a slow transition into the National Guard.  The National Defense Act of 1916 made the National Guard a component of the regular army…."

Arkansas Governor Orville Faubus attempted to use part of the National Guard to "prevent the entrance of black students into Little Rock High School" in 1957.  "President Dwight Eisenhower placed the entire Arkansas National Guard under presidential control and ordered the Guard to obey the President and not the governor.  The Arkansas National Guard complied."

When the President called for the National Guard in the 1980s, several governors attempted to withhold their forces and "filed a suit against the Department of Defense…. Ultimately, the Supreme Court upheld the supremacy of presidential control over the operations of the militia when called into actual service of the United States … and held that a state governor could not veto the use of a state militia when called upon by the nation in accordance with Congress's constitutional power and the President's constitutional authority."

In recent years the National Guard has been called up for "long periods of duty abroad, in actions in the two Gulf Wars, Bosnia, and Afghanistan."  (See David F. Forte in The Heritage Guide to the Constitution, pp. 100-200.)