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Monday, September 18, 2023

The 1792 Militia Act

In doing research on the Whiskey Rebellion, I learned that the 1792 Militia Act required the President to get a Supreme Court Associate Justice or a federal district judge from the circuit affected to "notify" him of an insurrection before the militia could be summoned. (Why the Chief Justice was excluded is not clear, but I don't recall how the Chief Justice's circuit duties worked under the Judiciary Act of 1789.)

This notification requirement is fascinating both from a separation-of-powers point of view and because the Act confirms the idea (expressed forcefully in the Youngstown concurrence) that the President's authority to use the military for domestic law enforcement was always seen as more circumscribed.


Posted by Gerard Magliocca on September 18, 2023 at 09:13 AM | Permalink


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