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Jennifer Elsea

@jnklz.bsky.social

5.7K followers 280 following 1.1K posts

Legislative attorney at CRS. NatSec, IHL, international law, etc. Army Intelligence officer in previous life. Opinions mine. No skeets from this account are attributable to CRS.

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Jennifer Elsea @jnklz.bsky.social · Jun 20

Apparently the 9th Circuit interprets the 10 USC § 12406 requirement that “regular forces” are unable to execute the law means federal officers. Legislative history makes clear that regular forces means the regular armed forces as opposed to the militia.

Jennifer Elsea @jnklz.bsky.social · 13h

Volunteer forces). In 1908, the language was revised to “the regular forces at his command,” so that regular troops would be deployed first before calling up the Guard. This law eventually became 10 USC § 12406, where its sister RS § 5297 eventually became 10 USC § 251, part of the Insurrection Act.

Jennifer Elsea @jnklz.bsky.social · 13h

Section 1642 was repealed and replaced as part of the Dick Act in 1903. The Chair claimed it was not a substantive change, although the authority to execute federal law in the event the President was unable to do so with “the other forces at his command” (apparently a reference to regular and

Jennifer Elsea @jnklz.bsky.social · 13h

In particular, the authority to call forth the militia in the event of invasions went to RS § 1642, in the title governing the militia, while the calling forth of militia in the event of insurrection against a state went to RS § 5297, in the title on Insurrection. Here they are:

SEc. 1642. Whenever the United States are invaded, or are in imminent danger of invasion from any foreign nation or Indian tribe, or in case of rebellion against the authority of the Government of the United States, it shall be lawful for the President to call forth such number of the militia of the State or States, most convenient to the place of danger, or the place of danger. or scene of action, as he may deem necessary to repel such invasion,
suppress such rebellion, and to issue his orders for that purpose to such officers of the militia as he may think proper.

SEC. 5297. In case of an insurrection in any State against the government thereof, it shall be lawful for the President, on application of the
legislature of such State, or of the executive, when the legislature cannot be convened, to call forth such number of the militia of any other State or states, which may be applied for, or … to employ … such part of the land or naval forces … as he deems necessary.

Jennifer Elsea @jnklz.bsky.social · 13h

Fun fact: Insurrection Act. The Act of Feb. 28, 1795 was the first permanent provision permitting the president to call forth the militia. By 1873, when all statutes in force were codified into the Revised Statutes, section one was split up:

Revised statutes table showing section one split into two sections destined for the title for the Militia and one for the Insurrection title

Jennifer Elsea @jnklz.bsky.social · 1d

The government will likely point out again that the report lists § 12406 as an exception to the PCA. I have not heard a persuasive argument that it is not, just assertions. I have not found evidence that anyone thought the PCA even applied to the organized militia in federal service. FWIW

Jennifer Elsea @jnklz.bsky.social · 2d

PCA report is here, in case anyone is interested.

www.congress.gov/crs_external...

www.congress.gov

Jennifer Elsea @jnklz.bsky.social · 2d

Yep, the gov brief cites all of the pages describing invocations of the IA and is presuming all situations amount to rebellion. I never said that. Here’s a footnote from the same report

40 Calling Forth Act of 1792, ch. 28, § 1, 1 Stat. 264 (repealed 1795 and current version now codified at 10 U.S.C. §
251 (2018)). It is unclear why Congress limited the ability of states to request assistance to circumstances of insurrection rather than "domestic violence" as permitted in Article IV, Section 4 of the Constitution. Perhaps
"domestic violence" was interpreted to be restricted to violence of a sufficient magnitude to constitute an insurrection, or the word "insurrection" was meant to convey armed violence that did not amount to a rebellion or revolution seeking to overthrow the government in part or all of a state. See RICH, supra note 37, at 21 n. 1 (citing definition of insurrection as including resistance to government authority smaller in scope and purpose than those described by the terms "rebellion" and "revolution"). The guarantee of a "republican form of government" would seem to require federal

intervention in the event of a rebellion against a state government even without its request.

Jennifer Elsea @jnklz.bsky.social · 3d

Good question.

Jennifer Elsea @jnklz.bsky.social · 3d

I did not know the Fourth Amendment protects government agents’ suspicions, but that explains a lot, really

Jennifer Elsea @jnklz.bsky.social · 3d

He seems to think it’s a right rather than a responsibility to be exercised only as necessary. From that remark, anyway.

Jennifer Elsea @jnklz.bsky.social · 3d

There’s also this, the prez’s “right” to deploy troops doesn’t end just because the exigency is over.

"If you don't hit it within a narrow window you lose your right — that just seems unnaturally constrained," complained
Nelson in response to Chaffin's arguments that the most intense protests in Portland happened back in June and July, months before the late September mobilization. He added that Trump's sending in of other federal officers "hasn't abated it," that there's "still violence going on," despite the district court's finding that there is no current significant unrest.

Jennifer Elsea @jnklz.bsky.social · 3d

So the prez has a “right” to respond to activity that is no longer ongoing, not a *responsibility* to restore order when actually necessary?

"If you don't hit it within a narrow window you lose your right — that just seems unnaturally constrained," complained
Nelson in response to Chaffin's arguments that the most intense protests in Portland happened back in June and July, months before the late September mobilization. He added that Trump's sending in of other federal officers "hasn't abated it," that there's "still violence going on," despite the district court's finding that there is no current significant unrest.

Jennifer Elsea @jnklz.bsky.social · 3d

It doesn’t *sound* very sharp

Jennifer Elsea @jnklz.bsky.social · 3d

Who knew the president could delegate decisions regarding the suspension of habeas corpus to a cabinet secretary? On the other hand, since she believes Habeas is the president’s right to deport people, maybe suspending it would be a good thing.

Jennifer Elsea @jnklz.bsky.social · 3d

NG called into federal service as the organized militia should not be considered just like any other soldier for duty purposes. The President is their Commander in Chief just the same, but their service is more limited to the constitutional purposes. The Court recognized the separate status.

∞ See Selective Draft Law Cases, 245 U. S. 366, 382-389 (1918); Cox v.
Wood, 247 U. S. 3, 6 (1918).
« Congress has by distinct statutes provided for activating the National Guard of the United States and for calling forth the militia, including the National Guards of the various States. See 10 U.S. C. §§ 672-675 (au-thorizing executive officials to order reserve forces, including the National Guard of the United States and the Air National Guard of the United States, to active duty); 10 U. S. C. §§331-333 (authorizing executive officials to call forth the militia of the States); 10 U. S. C. §§ 3500, 8500 (au-thorizing executive officials to call forth the National Guards of the various States). When the National Guard units of the States are called forth, the orders "shall be issued through the governors of the States." § 3500.

Jennifer Elsea @jnklz.bsky.social · 3d

The government again conflates the status of the National Guard of the United States with the National Guard as the organized militia. NGUS is a reserve component of the armed forces. Perpich was about members *ordered* (not called) into active service of the NGUS.

the federalized troops could be deployed.
This makes sense because the deployment decision is firmly committed to the President's
discretion. As explained above, the National Guard is composed of both the State National Guard,
under the command of the several States, and the National Guard of the United States, a federal entity
under the federal chain of command, see 10 U.S.C. § 10101. Once called into federal service, "members
of the National Guard... lose their status as members of the state militia during their period of active
duty," Perpich, 496 U.S. at 347, and become federal soldiers, who serve under the President as Commander in Chief, see U.S. Const. art. II, § 2, cl. 1. It is in that status—i.e, as federal soldiers— that the Texas National Guard members are being deployed to Illinois. On that issue, the statute imposes no geographic limitation. If anything, the statute merely confers broad discretion on the President, authorizing him to call up the Guardsmen in "such numbers as he considers necessary." 10 U.S.C.
§ 12406.

Jennifer Elsea @jnklz.bsky.social · 3d

Governors were not happy. After about a year of intense pressure from the states, Congress repealed the amendment, returning the IA (§ 253) to its original language.

Jennifer Elsea @jnklz.bsky.social · 3d

Fun fact: Insurrection Edition.
After Hurricane Katrina, when the La governor refused to request invocation of the Insurrection Act in NOLA, Congress amended the IA to permit the president to override the governor in such situations.

SEC. 1076. USE OF THE ARMED FORCES IN MAJOR PUBLIC EMER
GENCIES.
(a) USE OF THE ARMED FORCES AUTHORIZED.—
(1) IN GENERAL.—Section 333 of title 10, United States
Code, is amended to read as follows:
"$333. Major public emergencies; interference with State and
Federal law
"(a) USE OF ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.-
(1) The President may employ the armed forces, including the National Guard in Federal service, to-
"(A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the Inited States, the President determines that
"(i) domestic violence has occurred to such an extent
that the constituted authorities of the State of possession are incapable of maintaining public order; and
"ii) such violence results in a condition described in
paragraph (2): or
(B) suppress, in a State,
any insurrection, domestic
violence, unlawful combination, or conspiracy if such insurrec-tion, violation, combination, or conspiracy results in a condition

described in paragraph (2).
"(2) A condition described in this paragraph is a condition
that—
"(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that state or possession, that any part or class of its people is deprived of a night, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fall, or refuse o protect that right, privilege, or immunity, or to give that protection; or

PUBLIC LAW 109-364-OCT. 17, 2006
"(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
"(3) In any situation covered by paragraph (1)(B), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.
"(b) NOTICE TO CONGRESS.-The President shall notify Congress of the determination to exercise the authority in subsection (a)(1)(A) as soon as practicable after the determination and every 14 days thereafter during the duration of the exercise of that authority."
(2) PROCLAMATION TO DISPERSE. Section 334 of such title is amended by inserting "or those obstructing the enforcement of the laws" after "insurgents"
(3) HEADING AMENDMENT.-The heading of chapter 15 of such title is amended to read as follows:
"CHAPTER 15-ENFORCEMENT OF THE LAWS TO RESTORE PUBLIC ORDER".
120 STAT

Jennifer Elsea @jnklz.bsky.social · 4d

Even in the earlier cases upholding the president’s complete discretion the court looked at the facts on the ground. So this may be a test of the limits of judicial deference.

Jennifer Elsea @jnklz.bsky.social · 4d

I doubt § 252 would be held unconstitutional, but maybe limited?

Jennifer Elsea @jnklz.bsky.social · 4d

Seems pretty hard to argue with.

Jennifer Elsea @jnklz.bsky.social · 4d

True. The courts have not challenged the emergence declaration itself, but have overturned actions taken pursuant to the emergency.

Jennifer Elsea @jnklz.bsky.social · 4d

Entirely possible.

Jennifer Elsea @jnklz.bsky.social · 4d

The purpose of it was to prioritize the use of regular military, which had become practice anyway, prior to federalizing the Guard. Since the regular military forces still exist, no reason to just read the phrase out of it. IMHO

Jennifer Elsea @jnklz.bsky.social · 4d

which seems similar to me. I could be wrong. § 12406 started out in the same 1795 act that forms the IA, so I’d think they would be treated fairly similarly.