In Article 1, Section 8, Clause 15 the Constitution gave Congress the power "for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions". But in 1795, the third Congress replaced the original Militia act with one that removed or reduced several of the major checks on the President's authority to call forth the militia in times of insurrection. It also made permanent the Militia Act of 1792 which temporarily delegated the authority to call out the militia to the President. In 1795, the new language clearly articulated that it was lawful for the President to call forth the militia to the places of danger "as he may judge necessary":
[W]henever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the president to call forth such number of the militia of the state, or states most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his orders for that purpose to such officer or officers of the militia, as he shall think proper.Yet, this authority was challenged during the War of 1812. In 1812, James Madison with the help of Speaker of the House Henry Clay and Congressman John C. Calhoun pushed a declaration of war through Congress and sent orders to call out the state militias. Encouraged by the opposition Federalist party, vehement protests erupted in the Northeast, especially Connecticut and Massachusetts (which included Maine at the time). In response, the governors of the states of Connecticut, Massachusetts and Rhode Island refused to allow their state militias to be called out. Led by Caleb Strong the governor of Massachusetts, they took a principled stand against the War of 1812, branding it "Mr. Madison's War". They claimed that the federal government was trampling on state and individual rights. The governors felt strongly that the President did not have the right to judge whether or not the militia was needed, nor did they believe that the state militia could be required to serve under the regular army command. In effect these governors were refusing to accept the authority of the President as defined in the 1795 militia act.
Caleb Strong believed the law was on his side, and reached out to the Supreme Judicial Cort of the Commonwealth of Massachusetts for support. Theophilus Parsons, chief Supreme Justice of Massachusetts along with Samuel Sewal and Isaac Parker responded. Strong raised two questions.
1. Does the President have the authority to determine for himself when to call forth the Militia of the several states?
Parsons wrote back that it was his opinion that the right to call out the militia was "vested in the commanders in chief of the militia of the several states". Parson's laid out three specific purposes or exigencies for calling out the militia, "suppressing insurrections, and repelling invasions". Parsons stated that while the federal constitution provides that when one of these exigencies exist, the militia may be called out, but no power is given to the President, nor Congress to determine if such exigencies actually exists. This power is not delegated to the federal government by the constitution, nor is it prohibited by the states. Therefore it is reserved to the states respectively (10th amendment). Thus, in general it is the duty of the commanders of the states to determine if such exigencies exist and then yield command of the militia to the President.
But Parsons did not stop there. First he explained the danger of granting the federal government the right to choose when to call forth the militia. If Congress or the President had the right to identify the need and call forth the militia without the approval of the states, then they could turn the military against the intentions of the people without any constitutional remedy. Parsons wrote, "[a] different construction, giving to congress the right to determine when those special cases exist, authorizing them to call forth the whole of the militia, and taking them from the commanders in chief of the several states, and subjecting them to the command of the president, would place all the militia in effect at the will of congress, and produce a military consolidation of the states, without any constitutional remedy, against the intentions of the people, when ratifying the federal constitution". Yet, as Parson explained, that is exactly what happened in 1795, when Congress vested in the president the full and sole power of calling forth the Militia. So, unfortunately the answer to the first question is Yes, the president has the authority to judge for himself when to call forth the militia.
2. Does the Militia Act require the President himself to command the militia, or can they be lawfully commanded by other officers of the US Army?
Parsons answered by first explaining that the "federal constitution declares, that the president shall be the commander in chief of the army of the United States." In Parson's opinion, this "undoubtedly" allows the President to exercise this command by employing officers of the army of the United States. These men are commissioned by him according to the law. The president is also declared by the Constitution to be the commander in chief of the militia of the several states when called into service. But Parsons continued, the officers of the militia are to be appointed by the states. The president may exercise his command over the officers, but Parsons knew of "no constitutional provision, authorizing any officer of the army of the United States to command the militia, or authorizing any officer of the militia to command the army of the United States". Parsons concluded that to allow the militia to be placed under the command of an army officer, not of the militia, except the president would "render nugatory the provision". So his answer to the second question is No, the the militia can not be placed under the command of the US Army.
This refusal to turn over the militia to the President became a bit of a constitutional crisis, and in his 1812 state of the union, Madison asked Congress to look into the situation. Madison shared that certain correspondences (perhaps including the letter from Parsons to Governor Strong) would be shared with Congress. Madison explained that if the authority of the United States to call into service and command the militia could be thwarted even in a state of war, then there is not one nation and there is no union.
"Among the incidents to the measures of the war I am constrained to advert to the refusal of the governors of Maine and Connecticut to furnish the required detachments of militia toward the defense of the maritime frontier. The refusal was founded on a novel and unfortunate exposition of the provisions of the Constitution relating to the militia. The correspondences which will be laid before you contain the requisite information on the subject. It is obvious that if the authority of the United States to call into service and command the militia for the public defense can be thus frustrated, even in a state of declared war and of course under apprehensions of invasion preceding war, they are not one nation for the purpose most of all requiring it, and that the public safety may have no other resource than in those large and permanent military establishments which are forbidden by the principles of our free government, and against the necessity of which the militia were meant to be a constitutional bulwark."Eventually, Governor Strong compromised on the issue of command, and allowed the dispatch of the militia from the state's eastern district (now Maine) to be put under the command of the US army. Governor John Cotton Smith of Connecticut held out more strongly and ensured that his militia always remained under state command. In 1815, after the war, Madison urged Congress to review the ability for the federal government to call out the militia under the Commander in Chief.
"With this subject is intimately connected the necessity of accommodating the laws in every respect to the great object of enabling the political authority of the Union to employ promptly and effectually the physical power of the Union in the cases designated by the Constitution."The issue remain unresolved until 1827 in Martin v. Mott, when Justice Joseph Story validated the claim that the President had the exclusive right to judge if such exigencies existed for calling forth the militia.
http://www.presidency.ucsb.edu/ws/index.php?pid=29454
http://www.heritage.org/constitution#!/articles/1/essays/55/militia-clause
https://en.wikipedia.org/wiki/Opposition_to_the_War_of_1812_in_the_United_States
https://en.wikipedia.org/wiki/Caleb_Strong
http://press-pubs.uchicago.edu/founders/print_documents/a1_8_15s17.html
https://upload.wikimedia.org/wikipedia/commons/3/35/Battle_of_New_Orleans.jpg
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