The US President is the Commander in Chief of the militia (when the militia is called into the actual service of the United States). And the militia, at the time of the writing of the Constitution, was every able-bodied man who was not a member of the military. Through various anti-sexism laws (though no amendment), it seems likely that this now includes able-bodied women who are not in the military.
So who all can call the militia into service and under what conditions? Can the president, for example, point at me and say, “I move you into active service. Now, as your commander, I order you to help clean Air Force One.”
Read loosely, the clause seems to allow the president the right to issue any order to any person anywhere. A tighter reading might qualify that by saying that he can only utilize the militia in the defense of the nation. A mid-range reading might expand this to defense of the nation or for the purpose of executing the laws of the nation. But I’m not sure what sort of rigmarole would be involved in moving a unit or individual in the militia into active service.
What do you think? Overall, this doesn’t seem to be a power exercised by the President so there doesn’t seem to be a lot of casework around it. But I think you could make a fairly easy case, for example, that President Obama could activate every company in the US as a militia unit and order them to spend the next 6 months prioritizing their network security over new development, to help defend the interests of the country, and he wouldn’t really need to justify the decision.
I’ve long wondered about this, at the lower, local level. Who is the regional and local commander? If the Great Fyrd is called, and a messenger rides through town with a burning arrow, where am I supposed to muster? Who’s in charge?
There’s a lovely story about Abraham Lincoln, when he was part of a muster. One guy announced himself as commander, and Lincoln said, “I’ll wrestle you for it.”
In real practice, the U.S. doesn’t have a “militia.” We have the various state National Guard units, and they are formalized, with a command structure and HQ resources. The “unorganized militia” of the U.S. has neither of those things.
Though the opinion does seem to leave the door open for Congress to authorize this sort of action by the POTUS, it expressly rejects the idea that he can do that under his existing powers.
I thought it basically meant the draft was constitutional. I doubt it grants the President the power to treat every able bodied citizen as a slave if he feels like it. But the courts may think differently if the questions arises.
My understanding is that although the law defining the “unorganized militia” may still be on the books, that’s about as far as the clarity goes as to how any mobilization of the unorganized militia may occur.
The organized militia, which is defined in the same law, is the National Guard.
I’m not sure that case would be entirely relevant. The President tried to “seize” the businesses (e.g., take ownership of private property) rather than mobilize and issue orders to the individuals who happened to work for those businesses. I would agree with the court that the President has no right to seize property under his control of the militia.
Another complication is that the modern draft doesn’t rely on the authority to call up the militia at all. During and just after World War One several cases reached the Supreme Court challenging the national draft, which pressed able-bodied men into the Federal army with no pretense whatsoever of their being “militia”. The SC upheld the federal draft under Congress’s power to “raise and support armies” and the “necessary and proper” clause.
While I’d disagree that this is anything other than semantics, even accepting that these are different things, neither one is the same as issuing a direct order to an individual. The President neither issued an order to the steel company owners to accede to the demands of their workers nor did he order the workers back to work. Instead he tried to take possession of the plants and factories, and install his own hierarchy of people to manage them.
Edit: Interestingly enough, it seems to be mainly states who would be theoretically vulnerable to an invasion that have them. Most of the interior states don’t.
And yet the State Defense Forces aren’t militia in the technical sense: technically they’re standing state armies- “troops” in the original parlance of the late-18th century; and by the letter of the Constitution’s Compact Clause (Article One, Section Ten, Clause Three) they only exist because the federal congress passed legislation (32 U.S.C. § 109) giving the states permission to have them.
Yet because they are NOT considered militia, they are independent of the federal government; while what used to be the state militias became professionalized into the National Guard and subsumed into the US Army Reserve. So we have state defense forces that are the closest thing in actuality to independent state militias, while the “organized militia” are now troops in everything but name; a curious reversal. It’s reminiscent of how in Britain the common meaning of “public” and “private” schools became reversed; or how if prizes seized in the Napoleonic era were considered “droits of the crown” prize money was paid to the Navy crews, but if it was ruled a “droit of the admiralty” the government kept the money.
The Texas state guard is basically a bunch of guys who aren’t even armed, and who are organized into civil affairs units. Basically they’d do stuff like hand out MREs, search and rescue, and MP-ish stuff like directing traffic.
Women are currently considered members of the militia only if they are members of the National Guard. Oh, and it also includes 17-year-olds… See the relevant law:
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
Would there be a use in having some sort of system to assign ranks or positions in the “unorganized” militia? Perhaps it could link in somehow with universities or job training programs - e.g. earn an accredited bachelor’s degree, receive some sort of certificate guaranteeing at least a rank of second lieutenant if mustered. Complete a recognized trade apprenticeship, get a guaranteed rank of staff sergeant. Earn a master tradesman’s designation, get a guaranteed rank of master sergeant, etc.
In reality, the vast majority of those receiving such certificates will likely never face even a reasonable chance of being “mustered”. But would such a system provide some benefit such as citizen morale?
According to the letter of the Constitution, Congress has the power to set the training standards for the entire militia. Thus in theory, a federal law could require the states to administer any specified regimen upon the entire able-bodied populace; from passing a handgun proficiency test to undergoing full boot-camp military training. The latter was never considered practical, while I could see the former being enacted with an exemption for conscientious objectors (anyone who doesn’t want to own a gun).