1794 George Washington - Act for Calling Forth the Militia

In section 8 of the constitution, the power to "call forth" the militia was expressly given to congress.  But, only two years into George Washington's presidency, the Second Congress temporarily delegated its authority under the First Militia Clause by passing a statute “to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections and repel invasions.”   The Militia Act of 1792 was meant to be a three year long experiment, but gave the President broad powers to call out the militia.  Section one of the act covered foreign invasions and imminent dangers from a foreign nation and met little resistance in congress.  On the other hand, section 2 which dealt with suppressing insurrection met with much resistance on the floor of congress.  After much debate, additional amendments were added requiring judicial intervention and that the President must first order the insurgents to disperse.   Two years after this act passed, President Washington called forth the militia to suppress the Whiskey Rebellion.  

In Washington's sixth state of the Union Address he recounted the actions that he took. 

First, Washington followed the constitution and the militia act by first seeking and receiving certification from the Supreme Court. 

"Upon testimony of these facts an associate justice of the Supreme Court of the United States notified to me that "in the counties of Washington and Allegheny, in Pennsylvania, laws of the United States were opposed, and the execution thereof obstructed, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings or by the powers vested in the marshal of that district".

Second, Washington issued a proclamation commanding the insurgents to disperse.

"I postponed, therefore, the summoning of the militia immediately into the field, but I required them to be held in readiness, that if my anxious endeavors to reclaim the deluded and to convince the malignant of their danger should be fruitless, military force might be prepared to act before the season should be too far advanced.
My proclamation of the 7th of August last [1794-08-07] was accordingly issued, and accompanied by the appointment of commissioners, who were charged to repair to the scene of insurrection"

Finally the president assembles the militia to quell the rebellion.

"Thus the painful alternative could not be discarded. I ordered the militia to march, after once more admonishing the insurgents in my proclamation of the 25th of September last"

Washington was distraught that military force had to be used against his own countrymen, but he was very happy to report that the rebellion was over.  The event itself was disgraceful, and required a significant portion of the country's resources, but it proved that our prosperity rested on a solid foundation of citizens who understood the true principles of liberty.

"While there is cause to lament that occurrences of this nature should have disgraced the name or interrupted the tranquillity of any part of our community, or should have diverted to a new application any portion of the public resources, there are not wanting real and substantial consolations for the misfortune. It has demonstrated that our prosperity rests on solid foundations, by furnishing an additional that my fellow citizens understand the true principles of government and liberty; that they feel their inseparable union; that notwithstanding all the devices which have been used to sway them from their interest and duty, they are not as ready to maintain the authority of the laws against licentious invasions as they were to defend their rights against usurpation."

Commander in Chief George Washington could not have been prouder of the militia men that he called forth and marched 300 miles to Pennsylvania.  

"It has been a spectacle displaying to the highest advantage of republican government to behold the most and the least wealthy of our citizens standing in the same ranks as private soldiers, preeminently distinguished by being the army of the Constitution - undeterred by a march of 300 miles over rugged mountains, by approach of an inclement season, or by any other discouragement."

Washington was also proud and wanted to  thank the patriotic support he received from the governors.

"Nor ought I to omit to acknowledge the efficacious and patriotic cooperation which I have experienced from the chief magistrates of the States to which my requisitions have been addressed."

Above all, he wanted to give praise to every citizen of America for their affection and vigilant support of the constitution.

"To every description of citizens, let praise be given. but let them persevere in their affectionate vigilance over that precious depository of American happiness, the Constitution of the United States. Let them cherish it, too, for the sake of those who, from every clime, are daily seeking a dwelling in our land."

And when all was said and done, he hoped hey would realize that this insurrection was based upon ignorance and false accusations of their government.

"And when in the calm moments of reflection they shall have retraced the origin and progress of the insurrection, let them determine whether it has not been fomented by combinations of men who, careless of consequences and disregarding the unerring truth that those who rouse can not always appease a civil convulsion, have disseminated, from an ignorance or perversion of facts, suspicions, jealousies, and accusations of the whole Government."

Now it was time, for congress to amend the laws and make the Militia Act of 1792 permanent.  What better and more honorable way was there for congress to thank the citizens of America then to give the President full and lasting power to call forth the militia to suppress insurrections and repel invasions.

"Having thus fulfilled the engagement which I took when I entered into office, "to the best of my ability to preserve, protect, and defend the Constitution of the United States", on you, gentlemen, and the people by whom you are deputed, I rely for support.  In the arrangement to which the possibility of a similar contingency will naturally draw your attention it ought not to be forgotten that the militia laws have exhibited such striking defects as could not have been supplied by the zeal of our citizens. Besides the extraordinary expense and waste, which are not the least of the defects, every appeal to those laws is attended with a doubt on its success.  The devising and establishing of a well regulated militia would be a genuine source of legislative honor and a perfect title to public gratitude. I therefore entertain a hope that the present session will not pass without carrying to its full energy the power of organizing, arming, and disciplining the militia, and thus providing, in the language of the Constitution, for calling them forth to execute the laws of the Union, suppress insurrections, and repel invasions."

So, in 1795, the third congress replaced the original statute with the 1795 Militia act which removed or reduced several of the major checks on the President's authority to call forth the militia in times of insurrection (section 2).   Among other things the new act removed the requirement of getting an antecedent court order and removed the requirement to proclaim a dispersal before the militia is called out.   Clearly our founders envisioned that Congress owned the power to call out the militia, but in 1795 they permanently delegated that power to the president and authorized the President to act decisively, expeditiously, and unilaterally in times of military emergencies.  

http://www.presidency.ucsb.edu/ws/index.php?pid=29436
http://www.yalelawjournal.org/pdf/427_pa9skxwv.pdf