The Militia Act of 1903 in Historical Context

Recent events have turned public attention to the previously obscure Militia Act of 1903 and the even more obscure historians and political scientists interested in eighteenth- and nineteenth-century insurrection law. President Donald Trump claimed that the measure vests him with the power to federalize members of the California National Guard to curb what he claims is a rebellion by persons protesting U.S. Immigrant and Customs Enforcement activities in Los Angeles or an uprising that is preventing enforcement of federal immigration law. These claims are now being litigated in federal district and federal appeals courts.

The Militia Act of 1903, following the Militia Acts of 1792 and 1795, authorizes the president to federalize state militia under the conditions that common and constitutional law authorizes the president to declare martial law.  Federal law and Supreme Court precedent permit the President to federalize state militia and declare martial law only in response to an invasion, a rebellion, or another event, sometimes described as an “uprising,” that prevents federal courts from enforcing federal laws. Federal law and judicial precedent clearly give the president absolute discretion to determine whether to exercise these powers in response to an invasion, a rebellion, or another event that closed federal courts.  No one disputes that Trump under the Militia Act is authorized to decide whether to federalize state national guard members should the United States be invaded by Spain, the former Confederate States repeat their attempt at secession, or massive riots close all federal courts in Texas.[1]

Trump is making a different and more dubious exercise of executive power in California.  He is claiming that the Militia Act of 1903 empowers him to define what constitutes an invasion, a rebellion, and an uprising that prevents federal law enforcement, and then determine whether under his definitions the United States is experiencing an invasion, a rebellion, or an uprising that prevents federal law enforcement. History casts doubt on these claims.  The Militia Act was intended to empower the president to federalize the state militia to confront military forces or the equivalent of military forces. That measure gave the president no power to federalize state militia to confront sporadic violence by protestors who do not resemble in any way a military force.  The events in Los Angeles are inconsistent with common understandings of invasion, rebellion, or uprising that prevents the execution of federal laws in place when the Militia Act of 1903 was adopted.  Presidential power to declare by fiat that the triggering conditions for federalizing the state militia exist, while supported by a passage in Martin v. Mott (1827), is inconsistent with the text of the Militia Act and late nineteenth century judicial precedents, most notably Ex parte Milligan (1865).[2]

 

Text and History

The Militia Act of 1903 was designed to improve the capacity of the United States to fight wars at the turn of the twentieth century, after the difficulties the United States military experienced during the Spanish-American War trying to  combine regular, full time military forces and part-time members of state militia. The provisions focus on training members of the national guard for military combat.  The text prescribes important roles for the Secretary of War and War Department. None speak of the Attorney General, the Justice Department, or any other federal officer or institution charged with law enforcement. The Secretary of War, Elihu Root, in his annual report described the measure as ensuring “preparation in advance for the organization of volunteers in time of war.”[3]

Section Four declares that state national guard may be federalized “whenever the United States is invaded, or in danger of invasion from any foreign nation, or of rebellion against the authority of the Government of the United States, or the President is unable, with the other forces at his command to execute the laws of the Union in any part thereof.” No federal law permits the president to call the state militia into service under any other conditions, no matter how dire matters may seem to the president or the president may claim.  Root allayed concerns that the national guard might be put into service for routine law enforcement or in circumstances where the United States was not facing a military threat. When asked by a major in the Georgia national guard whether the bill authorized the president to use state national guard in “the suppression of insurrections and strikes,” a controversial matter in 1903, Root noted that the duty of state national guard continued to be “defined by the constitution” and that “the regular army would be employed” for “the suppression of insurrections and disturbances.”[4]

 

Rebellion 

The Supreme Court in the nineteenth century classified as a “rebellion” only massive uprisings aimed at overthrowing the existing government. Courts during the 1860s and afterwards routinely described the Civil War as a rebellion. United States v. Irwin (1888) spoke of the Mormon rebellion of 1857-58, in which Mormon militia attempted to drive all U.S. authorities out of Utah. The Supreme Court during the Civil War and Reconstruction pointed to two other rebellions that had occurred in the United States.  The Amy Warwick (aka The Prize Cases) (1862) declared that Shay’s Rebellion (1786) was a rebellion. Western Massachusetts farmers attempted to prevent the implementation of any law by closing the local courts. Ex parte Milligan spoke of Dorr’s Rebellion as a rebellion.  Dorr assembled a military force committed to overthrowing the government of Rhode Island. [5]

Civil War commentary frequently explored the difference between a rebellion and an insurrection. Webster’s Dictionary in 1865 treated the two as distinctive.  The text informed  readers that a revolt is an attempt to overthrow the government and an insurrection is an effort to resist the legal authority of the government.  More often, Civil War opinions and commentary spoke of rebellions as more extensive or ambitious insurrections. The term rebellion,” Francis Lieber, the leading constitutional commentator on Civil War issues, wrote, “is applied to an insurrection of large extent.” Many state courts agreed that a rebellion was an insurrection aimed at overthrowing the government. Martin v. Hortin (1865), quoting from General Henry Halleck, Elements of International Law and Laws of War, declared that “the term rebellion is applied to an insurrection of large extent or long duration; and is usually a war between the legitimate government of a State and portions or parts of the same, who seek to overthrow the government.” The Supreme Court of the United States adopted a similar distinction between insurrections and rebellions in The Amy Warwick when describing the Civil War as “no loose, unorganized insurrection, having no defined boundary or possession.” Numerous state cases quoted or paraphrased this passage.[6]

Thus, nineteenth-century disorders that were not “insurrections of large extent or long duration” fell outside the legal definition of a rebellion. The Supreme Court in In re Debs (1895) unanimously rejected claims that the Pullman strike was a rebellion even though the strike paralyzed the Midwest and presented severe challenges to local authorities. “Whatever any single individual may have thought or planned,” Justice David Brewer declared, “the great body of those who were engaged in these transactions contemplated neither rebellion nor revolution.” The justices similarly limited rebellions to the places in which the rebellion was actually occurring or where there was a threat that the government might be overthrown in entirety. Ex parte Milligan famously declared that no rebellion existed in Indiana during the Civil War.  The Supreme Court in Bean v. Beckwith (1873) similarly held that there was no rebellion in Vermont during the Civil War that would justify military authority to arrest and detain civilians.[7]

 

Judicial Process and Law Enforcement

Whether the president was capable of enforcing federal law in the nineteenth century depended on whether courts were open, whether judicial orders were being obeyed, and, according to the concurring opinion in Milligan, whether the legal system remained in control of the government.  Milligan turned on the federal courts being “open, and in the proper and unobstructed exercise of their jurisdiction.” Judicial opinions after Milligan made clear that the same principles governed federal use of the military, federal or state, to enforce the law.  Justice Stephen Field declared,  “I know of no law that was ever enacted in the United States, which would justify a military officer in enforcing the payment to him of a debt due from one loyal citizen to another loyal citizen, neither being in the military service, or residing in a state declared to be in insurrection, or in which the courts of law were not open and in the peaceful exercise of their jurisdiction.”[8]

This emphasis on judicial process explains the use of the plural “laws” in all the Militia Acts rather than a presidential power to call on the military to enforce a particular law.  When courts are closed, judicial process is unavailable for any claim of legal right. When courts are open and functioning, by comparison, judicial processes are available for determining whether those thought to be insurrectionists or rebels have valid legal and constitutional claims.  Insurrectionists and rebels often claim that they have a legal right to resist illegal or unconstitutional edicts.  They become insurrectionists and rebels when courts are open only when their claims are judicially rejected and they do not cease their violent opposition.  An alleged insurrectionist or rebel who respects court orders is not an insurrectionist or rebel.  Brewer in In re Debs declared that no rebellion occurred when the offending parties obeyed judicial decrees declaring their tactics during the Pullman strike illegal. “[W]hen in the due order of legal proceedings the question of right and wrong was submitted to the courts, and by them decided,” he wrote, the strikers “unhesitatingly yielded to their decisions.”[9]

 

Presidential Discretion

The Militia Act of 1903, following the Militia Acts of 1792 and 1795, vests the president with absolute discretion to federalize state militia only when certain objective triggering conditions exist. Nothing in the text gives the president the discretionary power to determine whether the United States has been invaded, is experiencing a rebellion, or lacks functioning federal courts in a particular jurisdiction. The Supreme Court in Ex parte Milligan determined without any deference to the president that a presidential decision to impose martial law in parts of Indiana at the end of the Civil War was unconstitutional.  Justice David Davis’s opinion concluded the conditions under which martial law might constitutionally be imposed were absent: Indiana was not being invaded, was not a site for rebellion, and the civil courts were open. Presidential decrees or federal laws to the contrary, the majority opinion in Milligan bluntly concluded, “Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction.”[10]

The Supreme Court and Supreme Court justices in various post-Civil War cases decided after Milligan similarly determined without any deference to other governing officials that no rebellion or any other condition existed that augmented presidential or federal powers. Justice Field in Bean did not defer to any federal official when declaring no rebellion existed in Vermont in the wake of the Civil War. Justice David Brewer in In re Debs evinced no tendency to defer to the President or Congress when rejecting counsel for the government’s claim that a rebellion existed in Chicago during the 1894 Pullman strike and was as non-deferential in U.S. v. Ju Toy (1905) when declaring no rebellion existed in California that justified denying Chinese immigrants access to judicial process.[11]

Supreme Court practice from the Civil War to the turn of the twentieth century indicated that the broad language about presidential discretion to federalize state militia in some antebellum cases, most notably Martin v. Mott, had either been silently overruled or narrowed to the particular facts of the case and principles underlying the decisions. Martin concerned a suit by a member of a state militia who objected to federalization when the United States was invaded during the War of 1812. Justice Story opinion declared, “the President (is) the sole and exclusive judge whether the exigency has arisen.” That claim, however, was immediately modified by Story’s concern with the disciplinary and other problems that would result if state militiamen could object to their deployment during an invasion.  The full quotation is:

“Is the President the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question, upon which every officer to whom the orders of the President are addressed, may decide for himself, and equally open to be contested by every militia-man who shall refuse to obey the orders of the President?”

The Supreme Court never cited Martin when, after the Civil War, the justices adjudicated lawsuits by civilians claiming that presidential use of the military for law enforcement violated their constitutional rights and interests.  Martin was limited to suits by militiamen challenging their deployment. Milligan supplied the rule when presidents claimed the triggering conditions for using military for law enforcement existed.  In 1932, a unanimous Supreme Court in Sterling v. Constantin held that the justices could determine whether the United States had been invaded, was fighting a domestic rebellion, or was experiencing an uprising that closed the courts when determining whether presidential uses of federal or state militia violated constitutional rights or interests.[12]

 

Conclusion

Americans from the ratification of the Constitution to the passage of the Militia Act of 1903 recognized that Congress could empower the President to federalize state militia only under the wartime or wartime analogue conditions under which Congress could empower the President to impose martial law. These conditions were limited to a foreign invasion, a domestic rebellion, or some other violent uprising that caused judicial proceedings in part of the United States to be suspended. The state militia federalized by the Militia Act were expected to confront troops or the equivalent, not criminals or scattered violent protestors. Interpreting the Militia Act of 1903 or any other federal measure, to give near absolute discretionary power to the president to determine when vast wartime powers may be exercise, Ex parte Milligan noted, would subvert the strict limitations of  in the militia acts and threaten constitutional democracy in the United States by enabled the president and subordinates to “substitute military force for and to the exclusion of the laws,” and govern as they “think right and properly, without fixed and certain rules.”[13]

 

[1] 1 Stat. 424 (1792); 1 Stat. 264, 264 (1795).

[2] 25 U.S. 19 (1827); 71 U.S. 2 (1866).

[3] 32 U.S. Stat. 775 (1903); G. David Crocker, et al., “South Carolina Judge Advocates of the United States Army Reserve, South Carolina National Guard and South Carolina State Guard,” South Carolina Lawyer, 48, 53 (January 2019); 32 U.S Stat. 776-79 (1903); “Root Favors the Canteen,” The Cleveland Leader (OH), December 1, 1865).

[4] 32 U.S. Stat. 775, 776 (1903); “Dick Militia Bill,” The Montgomery Advertiser (AL), May 15, 1903.

[5] United States v. Irwin, 127 U.S. 125, 128 (1888); See James Buchanan, “Proclamation—Rebellion in the Territory of Utah,” April 6, 1858, https://www.presidency.ucsb.edu/documents/proclamation-rebellion-the-territory-utah ; The Amy Warwick, 67 U.S. 635, 691 (1862); See Milligan, at 129. For a discussion of Shay’s Rebellion, see Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution (Oxford University Press:2016), 88-101; For a discussion of Dorr’s Rebellion, see Marcus Alexander Gadson, Sedition: How America’s Constitution Order Emerged from Violent Crisis (New York University Press: New York, 2025), 37-65.

[6] Insurrection, Dr. Webster’s Unabridged Dictionary of the English Language 702 (London, Bell & Daldy 1865); Francis Lieber, Instruction for the Government of Armies of the United States, in the Field (D. Van Nostrand: New York, 1863), 34; Keely v. Sanders, 99 U.S. 441, 448 (1878); Martin v. Hortin, 64 Ky. 629, 633 (1865) (quoting H.W. Halleck, Elements of International Law and Laws of War (J.S.Lippincott & Co.: Philadelphia, PA, 1866), 151; The Amy Warwick, 67 U.S. 635, 673 (1862); Smith v. Brazelton, 48 Tenn. (1 Heisk) 44, 55 (1870); Hill v. Boyland, 40 Miss. 618, 630, 632 (1866); Pennywit v. Kellogg, 13 Ohio Dec. Reprint 389, 390 (1870); Texas v. White & Chiles, 25 Tex. Supp. 465, 544 (1868); Hall v. Keese, 31 Tex. 504, 543 (1868).

[7] For a discussion of the Pullman Strike, see David Ray Papke, The Pullman Case: The Clash of Labor and Capital in Industrial America (University Press of Kansas: Lawrence, 1999); In Re Debs, 158 U.S. 564, 597-98 (1895); Milligan, at 121-22; Bean v. Beckwith, 85 U.S. 510, 514 (1873)

[8] Milligan, at 140-41 (Chase, CJ., concurring); Milligan, at 128; Mitchell v. Clark, 119 U.S. 633, 647 (1884).

[9] In Re Debs, 158 U.S. 564, 597-98 (1895)

[10] Milligan, at 121-22, 127 (1866)

[11] U.S. v. Ju Toy, 198 U.S. 253, 274 (1905) (Brewer, J., dissenting)

[12] Martin, at 29-30; 287 U.S. 378 (1932).

[13] Ex parte Milligan, 71 U.S. 2, 124-25 (1866).