Author:Eugene V. Rostow

Page 448

In every state, the command of the armed forces is the ultimate component of executive power. Article II of the Constitution, adapting British practice, designates the President commander-in-chief both of the nation's armed forces and of the state militia when it is called into national service. Article IV, guaranteeing each state a REPUBLICAN FORM OF GOVERNMENT, somewhat qualifies that authority. It provides that the national force be used to suppress domestic violence only on application of the state legislature or of the governor when the state legislature cannot be convened.

With regard to domestic (and republican) tranquillity, it became apparent soon after 1789 that the deference of Article IV to STATES ' RIGHTS did not permit the national government fully to protect the peace of the United States. Although state governments dealt with most episodes of domestic disorder?and still do?some of those episodes had a national dimension. As early as 1792, Congress declared that "it shall be lawful for the President" to use national troops or call forth the militia whenever he deems such action necessary to protect the functioning of the government or the enforcement of its laws. President GEORGE WASHINGTON leading more than 12,000 national guardsmen to suppress the WHISKEY REBELLION of 1793 is the classic symbol of an independent national power to enforce what the President, echoing Jean-Jacques Rousseau, called "the general will." This power has been invoked regularly, most notably during and after the CIVIL WAR, but also in major strikes affecting the national economy (IN RE DEBS, 1895) and in the enforcement of judicial decisions ordering racial DESEGREGATION during the 1950s and 1960s. President WILLIAM HOWARD TAFT used the national force to protect Asian ALIENS threatened by a local mob, relying on his duty as President to carry out the international responsibility of the United States for the safety of aliens.

The formula of the 1792 statute, like that used in later statutes, straddles an unresolved controversy between the President and Congress. Congress insists that its power to pass laws NECESSARY AND PROPER to implement the President's authority as commander-in-chief includes the right to restrict the President's capacity to act. All Presidents, on the other hand, while recognizing the necessity for legislation in many situations, claim that statutes cannot subtract from their constitutional duty and...

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