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Federalism and the Military Power of the United States

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Federalism and the Military Power of the United States Federalism and the Military Power of the United States Robert Leider* This Article examines the original meaning of the constitutional provisions governing the raising and organization of military forces. It argues that the Framers carefully divided the military between the federal and state governments. This division provided structural checks against the misuse of military power and made it more difficult to use offensive military force. These structural checks have been compromised by the creation of the U.S. Army Reserve, the dual enlistment of National Guard officers and soldiers, and the acceptance of conscription into the national army, all of which have enhanced federal military power beyond its original constitutional limits. This Article then explains the relevance of deviations from original constitutional design for contemporary legal disputes. Most significantly, although the expansion of federal military power has largely come at state expense, this expansion has also disturbed the allocation of war powers between Congress and the president. In addition, understanding the original division of military power is relevant to determining modern limits on Congress’s power to raise and regulate the armed forces, including its power to impose military criminal jurisdiction on reserve soldiers. INTRODUCTION ............................................................................... 990 I. THE CONSTITUTIONAL DIVISION OF MILITARY POWER ........ 994 A. Professional Forces .................................................. 996 B. (Mostly) Nationalizing the Militia......................... 1001 C. Practical Implications of Shared Federal-State Control over the Militia ......................................... 1009 1. Is the Militia Part of the State or Federal Government? ............................................... 1009 * Assistant Professor, George Mason University, Antonin Scalia Law School. For their excellent feedback on previous drafts, my sincere thanks to Akhil Amar, Ian Ayres, Will Baude, Bradford R. Clark, Robert J. Cottrol, Eugene Fidell, Eric Fish, Daniel Hemel, Brenna Jenny Leider, Jeffrey Leider, Nelson Lund, Thomas Merrill, Alex Platt, Zachary S. Price, Edward Purcell, Jeremy Rabkin, Richard Re, and the participants of George Mason’s Levy Workshop. I also wish to extend special thanks to Justice Brett Kavanaugh for his guidance on developing the initial drafts, and to Patrick Barry, Briana F. McLeod, Tyler Shannon, and the editors of the Vanderbilt Law Review for their editorial assistance. The Olin-Searle-Smith fellowship and George Mason University provided the support necessary to continue and complete this project. 989 990 VANDERBILT LAW REVIEW [Vol. 73:4:989 2. May States Refuse to Send Militia Forces? ........................................................ 1011 3. May States Deprive Their Citizens of the Right to Keep and Bear Arms? ................... 1014 D. Military Checks and Balances ............................... 1015 II. EXPANDING FEDERAL MILITARY POWER BY COLLAPSING THE DISTINCTION BETWEEN THE ARMY AND THE MILITIA ........ 1017 A. The National Guard: Part Militia and Part U.S. Army Reserve ......................................................... 1017 B. Unconstitutionality of the U.S. Army Reserve ....... 1021 C. Dual Enlistment of Officers ................................... 1029 III. SWALLOWING THE MILITIA WHOLE ................................... 1035 A. The Unconstitutionality of Conscription into the National Army ....................................................... 1037 B. Conscription into the Reserves ............................... 1050 IV. CONTEMPORARY ISSUES: WHY MILITARY FEDERALISM STILL MATTERS ........................................................................... 1057 A. Separation of Powers ............................................. 1058 B. Federalism ............................................................. 1063 1. Political Accountability .............................. 1064 2. Overseas Deployment and Domestic Security ....................................................... 1065 3. Preventing Illegal State Resistance to Federal Authority ....................................... 1068 4. The Militia as the Final Check on Federal Oppression .................................................. 1070 C. The Limits of Military Criminal Jurisdiction ....... 1071 CONCLUSION ................................................................................. 1075 INTRODUCTION The Constitution grants Congress the power to “raise and support Armies” and to “provide for organizing, arming, and disciplining, the Militia.”1 Congress has broader power over the armies of the United States than it has over the militia.2 For over a century, the Supreme Court has held that Congress’s Army Power is plenary and 1. U.S. CONST. art. I, § 8, cls. 12, 16. 2. The Constitution limits Congress’s power to call forth the militia into the service of the United States to three cases: executing the laws, suppressing insurrections, and repelling invasions. Id. art. I, § 8, cl. 15. Federal power over the militia is additionally limited by the provision that states appoint the officers, conduct the training, and govern the militia when it is not in the service of the United States. Id. art. I, § 8, cl. 16. 2020] FEDERALISM AND THE MILITARY POWER 991 unrestrained by the limitations in the Militia Clauses;3 that all (or nearly all) members of the organized militia—including its officer corps—can be required to join the national army;4 and that if Congress wants to evade the limitations of the Militia Clauses, Congress can deem militiamen to be army soldiers, thereby allowing Congress to exercise the same plenary authority over militiamen that it exercises over regular soldiers of the United States. This expansive federal power, the Court has said, “recognizes the supremacy of federal power in the area of military affairs.”5 This Article challenges that account. The Constitution divided military power not only horizontally between Congress and the president but also vertically between the federal government and the states. The Framers placed three critical limits in the Constitution. First, they separated the “Armies” from the “Militia.”6 Second, the Framers placed restrictions on the federal government’s use of the militia.7 Third, the Framers insulated the militia officer corps from direct federal supervision in peacetime by allowing states to select the officers.8 This Article argues that the federal government has undermined these three original structural limitations. First, Congress has evaded the limitations on its power over the militia through the creation of the U.S. Army Reserve. The U.S. Army Reserve is a wholly national militia that is accessible to the federal government outside of the three purposes enumerated by the Militia Clauses. Second, Congress has expanded its authority over the organized militia by requiring members of the National Guard to enroll in both the federal military reserve and the militia. This “dual enlistment” system has allowed Congress to exercise its plenary Army Power over the organized militia. And it has subverted the independence of militia officers from the federal 3. See Arver v. United States (Selective Draft Law Cases), 245 U.S. 366, 382 (1918) (distinguishing the “constitutional provisions concerning the militia [from] that conferring upon Congress the power to raise armies” and noting that Congress retains “complete authority” regarding “[t]he army sphere”). 4. See Perpich v. Dep’t of Def., 496 U.S. 334, 347 (1990) (noting that “every member of the Minnesota National Guard has voluntarily enlisted, or accepted a commission as an officer, in the National Guard of the United States and [has] thereby become a member of the Reserve Corps of the Army”); see also 10 U.S.C. § 246(b)(1) (2012) (defining the “organized militia” as the “National Guard” and the “Naval Militia”); 10 U.S.C. § 8904 (2012) (requiring ninety-five percent of naval militia members to be members of the U.S. Navy Reserve or U.S. Marine Corps Reserve to receive federal support). 5. Perpich, 496 U.S. at 351. 6. Compare U.S. CONST. art. I, § 8, cl. 12 (authorizing an exclusively federal army), with id. art I, § 8, cl. 16 (keeping the militia attached to the states). 7. Id. art. I, § 8, cls. 15–16. 8. Id. art I, § 8, cl. 16. 992 VANDERBILT LAW REVIEW [Vol. 73:4:989 government because states must discharge National Guard officers who lose their federal recognition. Finally, Congress has collapsed the distinction between the militia and the army by allowing the federal government to conscript all able-bodied citizens into the national army. Through its power to raise armies,9 the federal government may now swallow the entire militia. After explaining how the federal government has assumed military power originally reserved to the states, this Article explains why the federal takeover of the militia matters for a variety of contemporary legal disputes. Far from being distinct spheres, the division of power horizontally through separation of powers and vertically through federalism are intertwined. Most seriously, the federal government’s usurpation of state military power has destabilized the original horizontal division of military power between the president and Congress. The creation of a large military reserve force—an exclusively national militia in all but name—has substantially broadened presidential power to initiate and conduct hostilities without Congress’s ex ante consent. Finally,
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