The Calling Forth Clause and the Domestic Commander-in-Chief

Abstract

Disputes concerning the scope of the government's domestic crisis authority under the Commander-in-Chief Clause - particularly as of late - have tended to neglect the potential significance of other constitutional provisions in understanding the Constitution's separation of emergency powers. Perhaps no provision has been more disregarded than the so-called 'Calling Forth' Clause of Article I, which empowers Congress '[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions . . . .' In other writings, I have sought to emphasize the significance of the various statutes that Congress has enacted pursuant to its authority under the Calling Forth Clause, most of which are today codified at 10 U.S.C. §§ 331-335. In this symposium essay, my focus is more on the overlooked constitutional text itself, and what significance it may have for our modern understanding of the limitations placed upon the domestic use of the military by the Commander-in-Chief.

In particular, the essay explores two fundamental questions about the Calling Forth Clause: First, is the Clause limited on its face to only the 'militias'? If so, does the Clause therefore not even apply to today's National Guard, the members of whom participate in a 'dual enlistment' system whereby they are simultaneously members of their state guard and the 'National Guard of the United States,' and are acting in the latter capacity whenever 'federalized'? Second, if the Calling Forth Clause does not today limit the domestic use of the military, are there any other constitutional limitations on the domestic use of the military? What about statutory limitations, such as the Posse Comitatus Act of 1878? To what extent might such limitations unconstitutionally infringe upon the President's constitutional authority as Commander-in-Chief?

Ultimately, the essay concludes that, under current Supreme Court doctrine, the Clause does only limit the domestic use of the militias, as opposed to the military more generally, and that it is therefore a rather unimportant limitation on Congress's power to provide for the domestic use of the military. At the same time, however, the Clause reinforces the original understanding that Congress could limit the - President's - power to deploy military force domestically, a conclusion that could have significant implications vis-a-vis contemporary debates over inherent executive authority in the war on terrorism.

Keywords: posse comitatus, calling forth clause, militia, presidential power, insurrection, insurrection act