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The constitutional duty to constrain the exercise of unauthorized and unconstitutional presidential
powers may someday rest with the federal judiciary. However, at present, it is the solemn
constitutional duty of the U.S. Congress to act decisively to remove any pretense of legality from
the exercise of such unconstitutional powers — powers that have been accurately described as
“dictatorial” in nature.

— Bill Olson & Alan Woll

1. In 1894, federal court officials in Illinois requested the deployment of U.S. troops to enforce
judicial processes. The Illinois governor protested sharply against such deployment of U.S. troops
within his state, and requested that they be withdrawn. The President refused the governor's
request, and his action was upheld by the U.S. Supreme Court in the case In re Debs, 158 U.S.
564 (1895).

2. The Prize Cases, 67 U.S. 635, 670 (1863), emphasis added.

3. Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern
Democracies. (Princeton: Princeton University Press, 1948) p. 230, quoted in U.S. Congress,
Senate Special Committee on National Emergencies and Delegated Emergency Powers, A Brief
History of Emergency Powers in the United States, committee print, 93rd Cong., 2d sess.
(Washington: GPO, 1974), p. 15, emphasis added.

4. 10 U.S.C. 334.

5. Bennett Rich, The Presidents and Civil Disorder (Washington, D.C.: The Brookings
Institution, 1941), pp. 140, 144.

6. Id., pp. 141-42, emphasis both original and added.

7. Id., p. 138. The previous October, Colorado Governor Elias Ammons had declared a "modified
form of martial law." Id., p. 137.

8. Obviously, this ability to disarm persons within the United States is critical in light of reports that
disaffected religious and political fanatics, including so-called patriots, continue to purchase arms
and ammunition.

9. U.S. Congress, Senate Document No. 24, Coeur D'Alene Mining Troubles, 56th Cong., 1st
sess. (Washington: GPO, 1900), pp. 3, 74.

10. President Grant's October 12, 1871 Proclamation, 17 Stat. 949-50, emphasis added,
reproduced in U.S. Congress, Senate Document No. 209, Federal Aid in Domestic
Disturbances, 57th Cong., 2d sess. (Washington: GPO, 1903), p. 122.

11. Legalistic critics of President Grant's action assert that Article I, Section 9, clause 2 of the U.S.
Constitution, which states that "The Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases or Rebellion or Invasion the public Safety may require it," required a finding
of either a state of invasion or rebellion.

12. Federal Aid in Domestic Disturbances, p. 122.

13. U.S. Congress, Senate Special Committee on National Emergencies and Delegated Emergency
Powers, A Brief History of Emergency Powers in the United States, committee print, 93rd
Cong., 2d sess. (Washington: Government Printing Office, 1974), p. 19.

14. Id.

15. Id. at 20.

16. This action, which had the form of a proclamation, is reproduced in William H. Rehnquist, All
the Laws But One (Alfred A. Knopf: New York, 1998), p. 25. This action was determined to be
unconstitutional by Chief Justice of the United States Roger Taney, sitting as a circuit court judge in
Baltimore, in Ex parte Merryman 17 F.Cas. 144 (C.C.D. Md. 1861), but the Lincoln
Administration refused to either enforce or appeal the federal court ruling.

17. Jill E. Hasday, Civil War as Paradigm: Reestablishing the Rule of Law at the End of the
Cold War, 5 Kan. J.L. & Pub. Pol'y, 129, 130 (1996).

18. Rehnquist, p. 48. Following the war, the U.S. Supreme Court granted a writ of habeas corpus,
notwithstanding its suspension by the President. Ex parte Milligan, 71 U.S. 2 (1866), discussed at
length, below. The concurring opinion pointed out that the holding in Milligan was contrary to the
terms of the Habeas Corpus Act of 1863. Rehnquist, p. 131.

19. Proclamation Suspending the Writ of Habeas Corpus (September 24, 1862) cited by Hasday,
p. 130.

20. An Act relating to Habeas Corpus, and regulating Judicial Proceedings in Certain Cases
(March 3, 1863) ("Habeas Corpus Act of 1863").

21. Federal Aid in Domestic Disturbances, p. 61.

22. Military Aid to the Civil Power, p. 185.

23. E.g., when the Army was called out in Indiana in 1877; to Seattle in 1885; and to Idaho in
1892. Federal Aid in Domestic Disturbances, pp. 202, 218, 224.

24. E.g., when the Army was called out in Seattle in 1886; Los Angeles in 1894; Idaho in 1899;
Army and Marines in Los Angeles in 1992. Id., pp. 221, 236; 247-49; Christopher Schnaubelt,
"Lessons in Command and Control from the Los Angeles Riots," Parameters, Summer 1997.
Parameters is a quarterly publication of the U.S. Army War College.

25. E.g., the Dorr Rebellion in Rhode Island (1842); also both claimants to the office of Governor
of Arkansas requested federal troops in 1874, Id., pp. 66-68, 171-74.

26. Federal Aid in Domestic Disturbances, p. 109. Only blacks were disarmed.

27. (28)

28. Federal Aid in Domestic Disturbances, p. 5; Military Aid to the Civil Power, p. 204; see
also President Hayes' proclamations of July 18 and 21, 1877, and President Harrison's
proclamation of July 15, 1892.

29. The Presidents and Civil Disorder, p. 166.

30. Schnaubelt.

31. Id.

32. 57 Fed. Reg. 19359. President Bush appeared to rely on both 10 U.S.C. 331 and 332 as
bases for the Proclamation.

33. 57 Fed. Reg. 19361, emphasis added.

34. Colonel Thomas Lujan, "Legal Aspects of Domestic Employment of the

Army," Parameters, Autumn 1997.

35. Schnaubelt.

36. Id.

37. Id., quoting from Judge (and former FBI Director) William Webster's report concerning the
military and law enforcement response to the Los Angeles riots.

38. Lujan, emphasis added.

39. Id., emphasis added.

40. Quoted in House Rept. 104-749, Investigation Into the Activities of Federal Law
Enforcement Agencies Toward the Branch Davidians, p. 33, emphasis in original.

41. The Posse Comitatus is "[t]he entire population of a county above the age of fifteen, which a
sheriff may summon to his assistance in certain cases." Black's Law Dictionary, Revised Fourth
Edition (West Publishing: St. Paul, Minnesota, 1969), p. 1324.

42. Section 15 of the army appropriation bill for fiscal year 1878, reproduced in Federal Aid in
Domestic Disturbances, p. 188, emphasis added.

43. 18 U.S.C. 1385.

44. See Charles Doyle, Congressional Research Service, The Posse Comitatus Act & Related
Matters: The Use of the Military to Execute Civilian Law, CRS-39 (1995).

45. 10 U.S.C. 375; Pub. L. 97-86, title IX Sec. 905(a)(1), Dec. 1, 1981, 95 Stat. 1116,
emphasis added.

46. 53 Fed. Reg. 25776. Secretary of Defense Aspin's notice of the removal of the regulations
observed that the regulations "have served the purpose for which they are intended and are no
longer valid." See Doyle, CRS-12, n. 28.

47. Federal Aid in Domestic Disturbances, pp. 56, 76-77, 97, 129.

48. Doyle, opening summary, emphasis added.

49. Ironically, 10 U.S.C. 333 provides for the use of federal military forces where "any part or
class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution
and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect
that right, privilege, or immunity, or to give that protection." Thus the prescribed statutory remedy,
military intervention in domestic disturbances, may result in further violations of constitutional rights,
as in the disarming of American citizens.

50. Military Aid to the Civil Power, p. 211.

51. Id., p. 213.

52. Federal Aid in Domestic Disturbances, p. 5; Military Aid to the Civil Power, p. 204; see
also President Hayes' proclamations of July 18 and 21, 1877, and President Harrison's
proclamation of July 15, 1892.

53. George Mason, author of the Virginia Declaration of Rights and a participant in the
Constitutional Convention, defined the militia as "the whole people, except for a few public
officials." Larry Pratt, ed., Safeguarding Liberty: The Constitution and Citizen Militias
(Franklin, Tennessee: Legacy Communications, 1995) p. xiii. A similar definition currently survives
in the U.S. Code at 10 U.S.C. 311:

(a) The militia of the United States consists of all able-bodied males at least 17 years of age
and, except as provided in section 313 of title 32 [which allows persons who are under 64 years of
age and a former member of the Regular Army, Regular Navy, Regular Air Force, or Regular
Marine Corps to enlist in the National Guard] under 45 years of age who are, or who have made a
declaration of intention to become, citizens of the United States and of female citizens of the United
States who are members of the National Guard.

(b) The classes of the militia are -

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of
the National Guard or the Naval Militia.

54. Federal Aid in Domestic Disturbances, p. 22, emphasis added.

55. Id., p. 59, emphasis added.

56. 1 Stat. 264.

57. 2 Stat. 443, emphasis added.

58. See n.11, supra.

59. Federal Aid in Domestic Disturbances, pp. 5-9.

60. Doyle, CRS-21 through CRS-23.

61. 10 U.S.C. 371(a).

62. 10 U.S.C. 371(b).

63. 10 U.S.C. 372(a).

64. 10 U.S.C. 373.

65. 10 U.S.C. 374.

66. U.S. Congress, House Committee on Government Reform and Oversight and Committee on
the Judiciary, Investigation Into the Activities of Federal Law Enforcement Agencies Toward
the Branch Davidians, H. Rep. 104-749, 104th Cong., 2d sess. (Washington: Government
Printing Office, 1996), p. 5.

67. Id., pp. 35, 40.

68. Id., p. 38.

69. Id., p. 50.

70. Id.

71. Id.

72. Id.

73. Id.

74. Id., p. 53.

75. Id., p. 50.

76. Id.

77. In addition, you already enjoy emergency powers, granted by statute, derived from the
declaration of states of national emergency. Fourteen declarations of national emergency are
currently in effect: Iran I (November 14, 1979); Iran II (April 17, 1980); Libya (January 7, 1986);
Iraq (August 2, 1990); Yugoslavia (May 30, 1992); UNITA (September 26, 1993); Export
Control (August 19, 1994); Bosnia/Herzegovina (October 25, 1994); Weapons of Mass
Destruction (November 14, 1994); Middle East Terrorists (January 23, 1995); Columbian Drug
Dealers (October 21, 1995); Cuba (March 1, 1996); Burma (May 22, 1997); and Sudan
(November 3, 1997).

78. Some argue that President Grant's suspension of the writ of Habeas Corpus in South Carolina
was a tacit declaration of martial law. This view is based upon a February 3, 1880 opinion by the
U.S. Secretary of State to the Secretary of War. According to the Secretary of State, the
deployment of federal troops in New Mexico pursuant to a presidential proclamation dated
October 7, 1878 "can not properly be considered a proclamation 'declaring martial law;' it does
not suspend or authorize the suspension of the writ of habeas corpus" quoted in Major Cassius
Dowell, Military Aid to the Civil Power (Ft. Leavenworth, KS: General Service Schools Press,
1925) p. 219. Thus, in the view of the Secretary of State, the suspension of the writ of habeas
corpus is an incident of martial law.

79. Military Aid to the Civil Power, p. 238.

80. Regulations of the Department of Defense, emphasis added.

81. 32 CFR 501 is entitled "Employment of Troops in Aid of Civil Authorities."

82. I.e., a faction of lawyers and law professors who cling to the outdated notion that the U.S.
Constitution should be interpreted as its authors intended (so-called "original intent") in ignorant
denial of the knowledge gained from 200 years of experience -- as well as the wisdom and insights
gleaned from modern science.

83. 71 U.S. at 6-7.

84. Id. at 7.

85. Id. at 121, emphasis added.

86. Id. at 121-22, emphasis added.

87. Id. at 124-25, emphasis added.

88. Id. at 130.

89. 327 U.S. at 308.

90. Id. at 310-11.

91. Id. at 311-12.

92. Id. at 315-16, citations omitted, emphasis added.

93. Id. at 319.

94. Id., emphasis added. The Court would have done well to remember President Roosevelt's
admonition about the dangers of fear.

95. Id. at 322-23, citations omitted, emphasis added.

96. E.g., The Prize Cases, 67 U.S. 635 (1863); Hirabayashi v. United States, 320 U.S. 81
(1943); Korematsu v. United States, 323 U.S. 214 (1944); Dames & Moore v. Regan 453 U.S.
654 (1981).

97. Military Aid to the Civil Power p. 231, emphasis in original.

98. Id., emphasis in original.

99. Id., p. 232, emphasis both in original and supplied.

100. Id., p. 234, emphasis both in original and supplied.

101. See, e.g., New York Times, March 10, 1999, p. A15.

102. "Freedom Report," March 1999, published by Rep. Ron Paul (R-TX). The 1996 figure was
cited in an October 14, 1997 speech on the floor of the House of Representatives by Rep. Paul; he
was quoting published reports.

103. October 14, 1997 speech on the floor of the House of Representatives.