The Commander of the Militia Clause

The President shall be Commander in Chief . . . of the Militia of the several States, when called into the actual Service of the United States. . . .

—Judge Gregory E. Maggs & Robert Leider

Introduction

In addition to being commander in chief of the regular Army and Navy (see Essay No. 102), the President is commander in chief of the militia when called forth for national purposes. The Framers had no conception of modern reserve forces; they expected that the militia, compossed of citizens who could be called to perform temporary military service, would be the nation’s primary military reserve. This clause granted the President the same right of command over militia called into federal service that he had at all times over the regular Army and Navy. Dissatisfaction with the militia system, however, has led Congress to create a military system in which organized militiamen are also part of the armed forces. Statutorily, the organized component of the militia (primarily the National Guard) is organized ostensibly under the constitutional Army and Navy powers. As a result, the federal government has used its plenary military powers to bypass difficult constitutional questions about the operation of the militia.

History Before 1787

In England, the Crown exercised principal control of the country’s military forces. Parliament feared that King Charles intended to overthrow Parliament using the army. In 1642, Parliament claimed it had control of the militia.¹ This dispute over control of the militia was a precipitating cause of the English Civil War. Following the Restoration, Parliament passed a 1661 statute recognizing that the “sole supreme government of the militia and of all forces by sea and land is, and by the laws of England ever was, the undoubted right of the king and his predecessors, and that neither house of parliament could pretend to the same.”² Ultimately, Parliament would wrest other military powers from the Crown. The 1689 English Bill of Rights declared that a standing army was illegal unless raised with Parliament’s consent.

In the colonies, the militia remained decentralized. Each colony had its own separate militia, and the colonial executives were generally the commanders in chief of these forces. (See Essay No. 62.) Initially, the governors also had substantial power to organize and govern the forces, although colonial legislatures gradually assumed more control.³

This decentralized structure largely continued after independence. Upon separation from Britain, states adopted constitutions, many of which provided that state executives, often labeled governors, commanded the militia in their states. However, to cabin executive power, constitutions in some states required the executive to consult another body, such as a privy council.⁴ In the Northwest Ordinance, Congress similarly vested the territorial governor with supreme command of the territory’s militia.⁵

The existence of thirteen separate militia systems produced serious inconveniences during the Revolutionary War. These forces had difficulty fighting alongside one another,⁶ and disputes arose over which officers had the right of command.⁷ To remedy these defects, the delegates to the Constitutional Convention sought to partially nationalize control of the militia. (See Essay No. 63.)

The Constitutional Convention

During the Constitutional Convention, the delegates agreed that the militia should be nationalized when called into federal service. The least controversial aspect of this nationalization was to place the militia under the President’s command. The Committee of Detail’s proposal provided that the President “shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the Several States.”⁸ On August 27, the Convention limited this power: The President would be commander in chief of the militia only “when called into the actual service of the United States.”⁹ This amendment made clear that the President is the supreme commander of that portion of the militia that is called forth by Congress. Otherwise, principal command of the militia rested with the state commanders in chief.

The Constitution heavily circumscribed presidential power over the militia. It gave Congress the power both to provide for militia organization and to call forth the militia.¹⁰ The President thus has no inherent power either to organize militia forces or to call them into federal service. He may act only pursuant to the authority of Congress.

The Ratification Debates

Alexander Hamilton discussed the Commander of the Militia Clause in Federalist No. 69. He explained that the President “will have only the occasional command of such part of the militia of the nation, as by legislative provision may be called into the actual service of the Union.” This restricted power, Hamilton argued, gave the President less power than “[t]he King of Great-Britain and the Governor of New-York.” They “have at all times the entire command of all the militia within their several jurisdictions.”

The Whiskey Rebellion

On May 2, 1792, Congress enacted the Calling Forth Act.¹¹ The act delegated to the President the power to call forth the militia to execute the laws, suppress insurrections, and repel invasions. Congress conditioned this delegation in numerous ways. For example, in case of invasion, Congress instructed the President to “call forth such number of the militia of the state or states most convenient to the place of danger or scene of action, as he may judge necessary to repel such invasion.”¹² The use of the militia for domestic law enforcement was a touchy subject at the Constitutional Convention with Anti-Federalists fearing a military government. In the Calling Forth Act, Congress conditioned the President’s power to call forth the militia for domestic law enforcement on receiving notification from “an associate justice or the district judge” that federal law was being “obstructed . . . by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act.”¹³

President George Washington’s most notable use of the commander-in-chief power came in the summer of 1794 when opponents of liquor excise taxes imposed by Congress organized violent resistance to federal law.¹⁴ Washington received notification from Justice James Wilson that the laws could not be enforced through regular process of law, and only then did he summon 12,500 militia from New Jersey, Pennsylvania, Maryland, and Virginia to suppress the rebellion.¹⁵ This marked the first time that “the militia functioned as a national, rather than a local, institution.”¹⁶

The War of 1812

Before, during, and after the War of 1812, several questions arose concerning the Commander of the Militias Clause. First, did the states have a role in calling forth the militia for federal service? Congress, anticipating an invasion from Great Britain, sought to have the militia enter federal service to provide for the defense, and governors in Connecticut, Massachusetts, and Rhode Island contested this authority.¹⁷

The Connecticut governor would not allow the Connecticut militia to enter federal service because the United States had neither been invaded nor was in imminent danger.¹⁸ The Massachusetts governor similarly refused to place his state’s militia into federal service.¹⁹ The Massachusetts Supreme Judicial Court addressed this issue in an advisory opinion. It found that the Constitution reserved to the “commanders in chief of the militia of the several states” the authority to determine whether a military exigency existed requiring the militia to be placed in federal service.20 In 1814, Connecticut and Maine eventually placed some of their militia units into federal service for the limited purpose of securing their own coasts with the federal government funding the operation.²⁰

After the war, federal officials widely condemned the states’ actions. Secretary of War James Monroe maintained that Congress had the sole power to call forth the militia. Monroe argued that the militia would be useless if the federal government had to negotiate with each state’s governor individually to get the forces transferred to federal control.²¹ In his Commentaries on the Constitution, Justice Joseph Story doubted that the Massachusetts Supreme Judicial Court was correct. If it was, “the public service must be continually liable to very great embarrassments in all cases, where the militia are called into the public service in connexion with the regular troops.”²² Martin v. Mott (1827) held that Congress had the sole and unreviewable discretion to call forth the militia for federal service.²³

Second, who would command the militia forces? Did the Commander in Chief Clause require the President to command militia forces personally, or could the President place the militia under the command of regular army officers? President James Madison argued that once the militia was called into federal service during defensive conflicts, he could command both the regular forces and the militia in the manner most conducive to successful prosecution of the war.²⁴ This authority included the power to delegate operational control to subordinate commanders, whether Army or militia.

By contrast, the Massachusetts Supreme Judicial Court’s advisory opinion found that the President had to command the militia himself.²⁵ The Massachusetts court concluded that only the President and militia officers could command the militia when called into federal service.27 These militia officers were appointed by the states.

Underneath these issues are two fundamentally different visions about the nature of the militia. The Massachusetts Supreme Judicial Court treated the militia as state military forces. These forces may be allied with the regular military of the United States, but they may not be fused with them.²⁶ The Madison Administration considered the militia, when in federal service, to be a constitutive part of the national military establishment.

Modern Doctrine

The difficult legal questions that arose during the War of 1812 have never been firmly settled. The federal government found much of the militia system unworkable. Congress and the President have sought to bypass the militia system by recruiting temporary war volunteers under the control of the regular Army. Beginning in the twentieth century, the federal government used conscription, dual enlistment, and its Spending Clause authority to wrest operational control of nonprofessional forces from the states. (See Essay Nos. 59 and 63.) As a result, the federal government exercises virtual plenary control of all nonprofessional forces, and the U.S. Supreme Court has upheld this arrangement.

Open Questions

• Congress has delegated to the President the power to organize militia forces and call them into federal service, and the Supreme Court has upheld this delegation.²⁷ Is this delegation consistent with the text and history of the Constitution?
• Does the President have preclusive powers to make war without congressional authorization or to direct the military notwithstanding congressional acts attempting to regulate the armed forces?²⁸ Some scholars who deny that the President has such inherent power point to the militia provision as an example in which the President’s right to command is subordinate to the regulations made by Congress.²⁹
• The President is commander in chief of the District of Columbia militia at all times.³⁰ But what is the constitutional status of the District of Columbia’s militia? This question has received occasional scholarly inquiry. William Winthrop argued that the “authority for and legal status of the District militia are not clear. It is no part of the militia referred to in the Constitution, which evidently contemplates a militia of the States.”33 Again, this objection gets to the nature of the militia. If the militia is a state military force, this objection may have merit because the District is not a state. But if the militia is the able-bodied citizenry who may be called into temporary military service, then the District has militiamen just like the states do. If this second option is correct, the President’s plenary commander-in-chief power over the District’s militia comes from his authority as President to command the militia in federal service and by Congress’s authority to exercise exclusive power over the District.³¹

1. F.W. Maitland, The Constitutional History of England 325–26 (1920). ↩︎
2. Id. at 326 (quoting 13 Car. II, c. 6). ↩︎
3. Allan R. Millett, et al., For the Common Defense: A Military History of the United States from 1607 to 2012, at 5 (rev. ed. 2012). ↩︎
4. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—Framing the Problem, Doctrine, and Original Understanding, 121 Harv. L. Rev. 689, 781–82 & n.299 (2008); Del. Const. of 1776, art. IX; Md. Const. of 1776, art. XXXIII; Mass. Const. of 1780, pt. 2, ch. II, § I, art. XVII; N.C. Const. of 1776, art. XVIII; Va. Const. of 1776. ↩︎
5. Northwest Ordinance (1787), § 6. ↩︎
6. John K. Mahon, History of the Militia and the National Guard 36 (1983). ↩︎
7. Jerry Cooper, The Rise of the National Guard: The Evolution of the American Militia, 1865–1920, at 5 (1997). ↩︎
8. 2 Farrand’s 172. ↩︎
9. Id. at 422. ↩︎
10. Art. I, § 8, cls. 15–16. ↩︎
11. An Act to Provide for Calling Forth the Militia to Execute the Laws of the Union, Suppress Insurrections, and Repel Invasions, ch. 28, 1 Stat. 264. ↩︎
12. Id. § 1. ↩︎
13. Id. § 6. ↩︎
14. Russell F. Weigley, History of the United States Army 100 (1967). ↩︎
15. Id. at 100–01; David P. Currie, The Constitution in Congress: The Federalist Period 1789–1801, at 189 (1997). ↩︎
16. Millett et al., supra at 87. ↩︎
17. Marcus Armstrong, The Militia: A Definition and Litmus Test, 52 St. Mary’s L.J. 1, 28 (2020). ↩︎
18. Id. at 28–29. ↩︎
19. Id. at 31–32. ↩︎
20. Michael D. Doubler, I Am the Guard: A History of the Army National Guard, 1623–2000, at 79 (2001). ↩︎
21. Letter from Sec’y of War James Monroe, to Senate Military Affairs Comm. (Feb. 11, 1815), in 1 American State Papers: Military Affairs 604–06 (Walter Lowrie & Matthew St. Clair Clarke eds., 1832). ↩︎
22. 3 Story’s Commentaries § 1210. ↩︎
23. Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827). ↩︎
24. James Madison, Fourth Annual Message to Congress (Nov. 4, 1812), https://perma.cc/PZE6-DR2H. ↩︎
25. 8 Mass. at 550–51. ↩︎
26. Id. at 551. ↩︎
27. Mott, 25 U.S. (12 Wheat.) at 19. ↩︎
28. Saikrishna B. Prakash, Deciphering the Commander-in-Chief Clause, 133 Yale L.J. 1 (2023); Zachary S. Price, Congress’s Power over Military Offices, 99 Tex. L. Rev. 491 (2021); John Yoo, Transferring Terrorists, 79 N.D. L. Rev. 1183, 1202 (2004); David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A Constitutional History, 121 Harv. L. Rev. 941 (2008); Barron & Lederman, supra; Robert J. Delahunty & John C. Yoo, Making War, 93 Cornell L. Rev. 123 (2007); John C. Yoo, Crisis and Command: A History of Executive Power from George Washington to George W. Bush (2010). ↩︎
29. Richard A. Epstein, Executive Power, the Commander in Chief, and the Militia Clause, 34 Hofstra L. Rev. 317 (2005). ↩︎
30. D.C. Code § 49-409. ↩︎
31. Art. I, § 8, cl. 17; art. II, § 2, cl. 1; Robert Leider, Deciphering the “Armed Forces of the United States,” 57 Wake Forest L. Rev. 1195, 1208 n.72 (2022). ↩︎