Article II, Section 2, Clause 1:

The 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; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

President Washington himself took command of state militia called into federal service to quell the Whiskey Rebellion, but there were not too many occasions subsequently in which federal troops or state militia called into federal service were required.1 Since World War II, however, the President, by virtue of his own powers and the authority vested in him by Congress,2 has used federal troops on a number of occasions, five of them involving resistance to desegregation decrees in the South.3 In 1957, Governor Orval Faubus employed the Arkansas National Guard to resist court-ordered desegregation in Little Rock, and President Dwight Eisenhower dispatched federal soldiers and brought the Guard under federal authority.4 In 1962, President John Kennedy dispatched federal troops to Oxford, Mississippi, when federal marshals were unable to control rioting that broke out upon the admission of an African American student to the University of Mississippi.5 In June and September of 1964, President Lyndon Johnson sent troops into Alabama to enforce court decrees opening schools to Black students.6 And, in 1965, the President used federal troops and federalized local Guardsmen to protect participants in a civil rights march. The President justified his action on the ground that there was a substantial likelihood of domestic violence because state authorities were refusing to protect the marchers.7

Footnotes

1

U.S. Adjutant-Gen., Federal Aid in Domestic Disturbances 1787–1903, S. Doc. No. 209, 57th Cong. (1903); D.H. Pollitt, Presidential Use of Troops to Enforce Federal Laws: A Brief History, 36 N.C. L. Rev. 117 (1958). United States Marshals were also used on approximately thirty occasions. U.S. Comm’n on C.R., Law Enforcement: A Report on Equal Protection in the South 155–159 (1965).

2

10 U.S.C. §§ 251–255, 12406 (deriving from 1 Stat. 424 (1795); 12 Stat. 281 (1861); 17 Stat. 14 (1871)).

3

The other instances were in domestic disturbances at the request of state governors.

4

Proc. No. 3204, 22 Fed. Reg. 7628 (1957); Exec. Order 10730, 22 Fed. Reg. 7628 (1957). See 41 Op. Att’y Gen. 313 (1957); see also Cooper v. Aaron, 358 U.S. 1, 12 (1958) (reporting that federalized National Guard troops replaced regular troops to protect Black students from November 27, 1957, through the balance of the school year); Aaron v. McKinley, 173 F. Supp. 944 (E.D. Ark. 1959) (state law authorizing the governor to close schools to prevent desegregation held unconstitutional)), aff’d sub nom Faubus v. Aaron, 361 U.S. 197 (1959); Faubus v. United States, 254 F.2d 797, 806 (8th Cir.) ( “We think there is no merit in the appellants’ argument that the discretion of the Governor in using the National Guard in derogation of the judgment and orders of the federal District Court and in violation of the constitutional rights of the eligible Negro students could not be questioned.” ), cert. denied, 358 U.S. 829 (1958).

5

Proc. No. 3497, 27 Fed. Reg. 9681 (1962); Exec. Order No. 11053, 27 Fed. Reg. 9693 (1962). See United States v. Barnett, 346 F.2d 99, 109 (5th Cir. 1965) (Wisdom, C.J., dissenting) (objecting to dismissal of civil contempt charges against the state governor and lieutenant governor for their role in preventing execution of federal court order and in the ensuing riot, commenting, “To win this battle, the United States Army had more soldiers under arms at Oxford, Mississippi, or held close by in reserve, than George Washington in the Revolutionary War ever commanded at one time” ).

6

Proc. 3542, 28 Fed. Reg. 5707 (1963); Exec. Order No. 11111, 28 Fed. Reg. 5709 (1963); Proc. No. 3554, 28 Fed. Reg. 9861; Exec. Order No. 11118, 28 Fed. Reg. 9863 (1963). See Alabama v. United States, 373 U.S. 545 (1963) (per curiam) (denying Governor’s motion to file complaint on the basis that “[s]uch purely preparatory measures [of alerting and stationing military personnel in the Birmingham area] and their alleged adverse general effects upon the plaintiffs afford no basis for the granting of any relief” ).

7

Proc. No. 3645, 30 Fed. Reg. 3739 (1965); Exec. Order No. 11207, 30 Fed. Reg. 2743 (1965).