Page:The Green Bag (1889–1914), Volume 16.pdf/172

 Rh IN the Michigan Law Review for January,! "whenever, by reason of unlawful obstruc tions, or assemblages of persons, or rebellion Professor John A. Fairlie continues his dis cussion of "The Administrative Powers of ' against the authority of the government of the United States, it shall become impractic President,'' taking up the special adminis able, in the judgment of the President, to en trative powers conferred on him by the Con force by the ordinary course of judicial proceed stitution. Concerning the President's mili ings the laws of the United States within any tary powers "in maintaining internal order State or territory." and suppressing resistance to law not amounting to war," the writer says: This provision in the statutes has been For these latter purposes the army is ac continued since the Civil War; and even after tively employed under two sets of conditions: the process of reconstructing the southern To protect a State against domestic violence, States was accomplished, Federal troops as guaranteed by the Constitution; and to en were stationed in these States and employed force the laws of the United States and pro especially in enforcing the Federal laws tect the instrumentalities of the Federal gov regulating the elections for Presidential ernment against unlawful interference. . . . electors and members of Congress, com In cases of domestic violence the Presi monly known as the Force Bills. But dent was restricted by the condition that he opposition in Congress to this policy should act on application of the State author prevented the passage of the Army Appro ities. But under other circumstances he was priation bill in 1877 until four months after authorized to act without any such condition the expiration of the former appropriation, expressed. This larger power of independ and led to the adoption next year of a statu ent action was provided for, on the one hand tory provision to limit the use of troops. The in cases of invasion or imminent danger of Army Appropriation Act of 1878 provided invasion, and on the other hand in cases of that "from and after the passage of this act opposition to the laws of the United States. it shall not be lawful to employ any part of The former class of cases deal distinctly with the army of the United States as a posse the conduct of war, which has already been comitatus, or otherwise, for the purpose of considered. In reference to the latter, it is executing the laws, except in such cases and important to notice the statutory provisions under such circumstances as such employ and questions that have arisen in the exer ment of said force may be expressly author ized by the Constitution or by act of Con cise of the authority. The Militia Act of 1795, already mentioned, authorized the gress." President to call out the militia "whenever Among the purposes for which the use of the laws of the United States shall be op the army and navy is expressly authorized by Acts of Congress are in reference to Indian posed, or the execution thereof obstructed, in any State, by combinations too powerful affairs, the protection of the public lands, the execution of neutrality laws, the protection to be suppressed by the ordinary course of of merchant marine and the suppression of judicial proceedings, or by the powers vested piracy, the enforcement of judicial proceed in the marshals by this act." The Act of ings and the suppression of insurrections or 1807 authorized the use of the army and unlawful combinations obstructing the laws navy under these same circumstances. Un der this authority troops were used on vari of the United States. ous occasions to overcome resistance to the During the railroad strikes of 1894 Fed eral troops were employed without request internal revenue laws and for other purposes. And it was under these provisions that Presi from the State governments to a much larger dent Lincoln issued his first call for militia. . extent than formerly. The Governor of By Act of July 29, 1861, the authority of the Illinois protested against action ignoring the President was increased; and he was author State government; but it was shown that the ized to use the militia or the army and navy employment of the troops was in accord