Prof. Michael McConnell on the Constitution and the President's Calling out the National Guard

Prof. Michael McConnell at the Stanford Law School, a leading constitutional law scholar (and former Tenth Circuit judge), passed this along, and I’m delighted to be able to post it; note that this is about the constitutional objection to the President’s actions, not about the particular statutory scheme that’s involved or about the wisdom of the actions:

Critics claim that President Trump’s use of National Guard troops to quell the violence in Los Angeles over the opposition of the governor is contrary to the Constitution’s principles of federalism. This particular line of criticism is mistaken.

This issue was debated at the Constitutional Convention in 1787. The National Guard is the modern form of what the Constitution calls the “militia.” The delegates voted to empower Congress to “provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections, and repel invasions,” in which case the President would be their Commander in Chief. (Article I, Section 8, Clause 15; Article II, Section 2, Clause 1.) Consent of the state governor is not required. To be sure, Article IV, Section 4 imposes a duty on the United States to protect the States against “domestic Violence” only on application of the state legislature or governor, but the power, as opposed to the duty, of the federal government to use the militia to enforce federal law was not made subject to the will of state authorities.

Some delegates—led by Elbridge Gerry and Luther Martin, both of whom later opposed ratification of the Constitution—took the opposite position, the one now espoused by some critics of President Trump. Luther Martin urged that states be left “to suppress Rebellions themselves.” II Farrand 48. Elbridge Gerry, sounding much like Governor Newsom, stated that he was “against letting loose the myrmidons of the U. States on a State without its own consent.” Referring to Shay’s Rebellion, which was suppressed without federal help, he averred that “[m]ore blood would have been spilt in Massts in the late insurrection, if the Genl. authority had intermeddled.” II Farrand 317.

That position was rejected by the majority of the Convention, who adopted instead the provisions quoted above allowing deployment of the militia to enforce federal law and suppress rebellion. Nathaniel Gorham of Massachusetts (who may be little known today but was Chairman of the Convention’s Committee of the Whole), best expressed the majority view: “With regard to different parties in a State; as long as they confine their disputes to words they will be harmless to the Genl. Govt. & to each other. If they appeal to the sword it will then be necessary for the Genl. Govt., however difficult it may be to decide on the merits of their contest, to interpose & put an end to it.” In other words, peaceful protest is permitted, but when protest spills over into violence, the national government is entitled to intervene. That is the rule today.

Whether President Trump’s actions are justified as a matter of prudence may well be debated, but the notion that the Constitution’s rules of “federalism” are offended by federal intervention absent gubernatorial request is contradicted by the words and history of the Constitution.

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