The federal law Trump invoked - the Militia Act of 1903 - can only be used in the event of 1) "invasion" or danger of invasion by a foreign power 2) rebellion, or 3) a situation where the president is "unable with the regular forces to execute the laws of the United States." 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. 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 exercised, [The Supreme Court's ruling in] 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."
Author: Ilya Somin
Published at: 2025-07-23 21:01:31
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