# Commander of the Militia **URL:** \ **Category:** Great Debates\ **Created:** [March 2, 2016, 8:56pm UTC](https://boards.straightdope.com/t/commander-of-the-militia/747768 "2016-03-02T20:56:38Z")\ **Posts on this page:** 17\ **Page:** 1
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [March 2, 2016, 8:56pm UTC](https://boards.straightdope.com/t/commander-of-the-militia/747768/1 "2016-03-02T20:56:38Z")
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. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [March 2, 2016, 9:04pm UTC](https://boards.straightdope.com/t/commander-of-the-militia/747768/2 "2016-03-02T21:04:47Z")
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. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 2, 2016, 9:38pm UTC](https://boards.straightdope.com/t/commander-of-the-militia/747768/3 "2016-03-02T21:38:47Z")
> [@Sage\_Rat](#): > > …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. It’s [been tried](https://supreme.justia.com/cases/federal/us/343/579/case.html#587). > [@](#): > > To avert a nationwide strike of steel workers in April 1952, which he believed would jeopardize national defense, the President issued an Executive Order directing the Secretary of Commerce to seize and operate most of the steel mills. The Order was not based upon any specific statutory authority, but was based generally upon all powers vested in the President by the Constitution and laws of the United States and as President of the United States and Commander in Chief of the Armed Forces. The Secretary issued an order seizing the steel mills and directing their presidents to operate them as operating managers for the United States in accordance with his regulations and directions. The President promptly reported these events to Congress; but Congress took no action. It had provided other methods of dealing with such situations, and had refused to authorize governmental seizures of property to settle labor disputes. The steel companies sued the Secretary in a Federal District Court, praying for a declaratory judgment and injunctive relief. The District Court issued a preliminary injunction, which the Court of Appeals stayed. But no dice. [QUOTE=Justice Hugo Black] It is clear that, if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that “The executive Power shall be vested in a President . . .”; that “he shall take Care that the Laws be faithfully executed”, and that he “shall be Commander in Chief of the Army and Navy of the United States.” The order cannot properly be sustained as an exercise of the President’s military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though “theater of war” be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,587 (1952). [/QUOTE] 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. ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [March 2, 2016, 10:14pm UTC](https://boards.straightdope.com/t/commander-of-the-militia/747768/4 "2016-03-02T22:14:11Z")
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. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [March 2, 2016, 10:29pm UTC](https://boards.straightdope.com/t/commander-of-the-militia/747768/5 "2016-03-02T22:29:46Z")
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. ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [March 2, 2016, 10:47pm UTC](https://boards.straightdope.com/t/commander-of-the-militia/747768/6 "2016-03-02T22:47:42Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It’s [been tried](https://supreme.justia.com/cases/federal/us/343/579/case.html#587). > > But no dice. > > 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’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. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 2, 2016, 10:50pm UTC](https://boards.straightdope.com/t/commander-of-the-militia/747768/7 "2016-03-02T22:50:45Z")
It wasn’t about ownership. It was about the federal government taking _control_ of the steel mills on a temporary basis in wartime. No expropriation. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [March 2, 2016, 11:01pm UTC](https://boards.straightdope.com/t/commander-of-the-militia/747768/8 "2016-03-02T23:01:41Z")
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. ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [March 2, 2016, 11:15pm UTC](https://boards.straightdope.com/t/commander-of-the-militia/747768/9 "2016-03-02T23:15:53Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It wasn’t about ownership. It was about the federal government taking _control_ of the steel mills on a temporary basis in wartime. No expropriation. > [@](#): > > 1. The Secretary of Commerce is hereby authorized and directed to **take possession** of all or such of the **plants, facilities, and other property** of the companies named in the list attached hereto, or any part thereof, as he may deem necessary in the interests of national defense, and to operate or to arrange for the operation thereof and to do all things necessary for, or incidental to, such operation. > > 2. In carrying out this order, the Secretary of Commerce may act through or with the aid of such public or private instrumentalities or persons as he may designate, and all Federal agencies shall cooperate with the Secretary of Commerce to the fullest extent possible in carrying out the purposes of this order. > > 3. The Secretary of Commerce shall determine and prescribe terms and conditions of employment under which the **plants, facilities, and other properties possession of which** is taken pursuant to this order shall be operated. The Secretary of Commerce shall recognize the rights of workers to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining, adjustment of grievances, or other mutual aid or protection, provided > > that such activities do not interfere with the operation of such plants, facilities, and other properties. > > 1. Except so far as the Secretary of Commerce shall otherwise provide from time to time, the managements of the **plants, facilities, and other properties possession of which** is taken pursuant to this order shall continue their functions, including the collection and disbursement of funds in the usual and ordinary course of business in the names of their respective companies and by means of any instrumentalities used by such companies. > > 2. Except so far as the Secretary of Commerce may otherwise direct, existing rights and obligations of such companies shall remain in full force and effect, and there may be made, in due course, payments of dividends on stock, and of principal, interest, sinking funds, and all other distributions upon bonds, debentures, and other obligations, and expenditures may be made for other ordinary corporate or business purposes. > > 3. Whenever, in the judgment of the Secretary of Commerce, further **possession** and operation by him of any plant, facility, or other property is no longer necessary or expedient in the interest of national defense, and the Secretary has reason to believe that effective future operation is assured, he shall **return the possession** and operation of such plant, facility, or other property to the company in **possession** and control thereof at the time possession was taken under this order. > > 4. The Secretary of Commerce is authorized to prescribe and issue such regulations and orders not inconsistent herewith as he may deem necessary or desirable for carrying out the purposes of this order, and he may delegate and authorize subdelegation of such of his functions under this order as he may deem desirable. It certainly sounds like the President was trying to take over the businesses rather than simply to issue orders to individuals within the company. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 2, 2016, 11:20pm UTC](https://boards.straightdope.com/t/commander-of-the-militia/747768/10 "2016-03-02T23:20:11Z")
Possession =/= ownership. ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [March 3, 2016, 12:09am UTC](https://boards.straightdope.com/t/commander-of-the-militia/747768/11 "2016-03-03T00:09:13Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Possession =/= ownership. 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. ---
**Author:** ![Flyer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/flyer/32/7298_2.png) [@Flyer](https://boards.straightdope.com/u/Flyer)\ **Post date:** [March 3, 2016, 1:06am UTC](https://boards.straightdope.com/t/commander-of-the-militia/747768/12 "2016-03-03T01:06:50Z")
> [@Trinopus](#): > > 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. Allow me to introduce you to the various state defense forces. A total of 22 states have them. > **[State defense force](https://en.wikipedia.org/wiki/State_defense_force)** > > In the United States, state defense forces (SDFs) are military units that operate under the sole authority of a state government. State defense forces are authorized by state and federal law and are under the command of the governor of each state. > State defense forces are distinct from their state's National Guard in that they cannot become federal entities. All state National Guard personnel (to include the National Guard of the District of Columbia, the Commonwealth of Puerto Rico and the t... And if you have a lot of time on your hands, here’s a 76-page report on the subject from the DoD. [http://www.dodig.mil/pubs/documents/DODIG-2014-065.pdf](http://www.dodig.mil/pubs/documents/DODIG-2014-065.pdf) 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. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [March 3, 2016, 2:45am UTC](https://boards.straightdope.com/t/commander-of-the-militia/747768/13 "2016-03-03T02:45:22Z")
> [@Flyer](#): > > Allow me to introduce you to the various state defense forces. A total of 22 states have them. > [State defense force - Wikipedia](https://en.wikipedia.org/wiki/State_defense_force) > > And if you have a lot of time on your hands, here’s a 76-page report on the subject from the DoD. > [http://www.dodig.mil/pubs/documents/DODIG-2014-065.pdf](http://www.dodig.mil/pubs/documents/DODIG-2014-065.pdf) > > 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. ---
**Author:** ![bump](https://avatars.discourse-cdn.com/v4/letter/b/7c8e57/32.png) [@bump](https://boards.straightdope.com/u/bump)\ **Post date:** [March 3, 2016, 2:47am UTC](https://boards.straightdope.com/t/commander-of-the-militia/747768/14 "2016-03-03T02:47:47Z")
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. (I know; a guy I work with is part of a unit) ---
**Author:** ![Some\_Call\_Me.Tim](https://avatars.discourse-cdn.com/v4/letter/s/439d5e/32.png) [@Some\_Call\_Me.Tim](https://boards.straightdope.com/u/Some_Call_Me.Tim)\ **Post date:** [March 3, 2016, 3:45am UTC](https://boards.straightdope.com/t/commander-of-the-militia/747768/15 "2016-03-03T03:45:41Z")
> [@Sage\_Rat](#): > > 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. 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](https://www.law.cornell.edu/uscode/text/10/311): (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. ---
**Author:** ![robert\_columbia](https://avatars.discourse-cdn.com/v4/letter/r/e79b87/32.png) [@robert\_columbia](https://boards.straightdope.com/u/robert_columbia)\ **Post date:** [March 6, 2016, 6:35pm UTC](https://boards.straightdope.com/t/commander-of-the-militia/747768/16 "2016-03-06T18:35:31Z")
> [@Trinopus](#): > > 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.”… 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? ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [March 6, 2016, 11:17pm UTC](https://boards.straightdope.com/t/commander-of-the-militia/747768/17 "2016-03-06T23:17:45Z")
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).