Although the president might like to have the power to make words in the Constitution mean what he chooses them to mean, he has no such power

By James Lobsenz

President Trump’s lawyers maintain that the street protests against immigration arrests taking place in Los Angeles constituted a “rebellion,” and therefore the President had the legal authority to call out the federal militia and send it to California to suppress that “rebellion.” But the President does not have the constitutional power to call out the militia whenever he pleases. A demonstration or a protest against a president’s policies cannot be outlawed by simply declaring it to be a rebellion. Even when some individual protesters commit acts of property destruction or other crimes, using federal troops to intimidate or arrest people who seek to peaceably exercise their First Amendment right to freedom of assembly and speech violates the Constitution.

In Article II, the Constitution does say that “The President shall be the Commander-in-Chief … of the Militia of the several States, when called into the actual service of the United States.” But that does not mean that he can unilaterally send troops into California. His power to command only comes into play after the milita has been “called into  service.” And the Constitution does not say that the President shall have the power to call the militia into service. Instead, it says “The Congress shall have Power … to provide for calling forth the Milita to execute the Laws of the Union, suppress Insurrections and repeal Invasions.”

Congress exercised its power to do that by enacting a law that states that before the President can “call out” the militia, there must first be a determination that there has been “an invasion of the United States …  by a foreign nation,” or  “a rebellion … against the authority of the Government of the United States.” The President’s lawyers do not claim that California had been “invaded” by a foreign nation. But they do claim that there was a “rebellion” against the United States, and therefore the president did have the power to send in federal troops. On Thursday, federal judge Charles Breyer, a district court judge, correctly rejected that assertion.

There is a difference between a protest and a rebellion. Hundreds of thousands of people protested the Vietnam War. But the fact that they marched, carried signs, chanted, engaged in sit-ins, and burned their draft cards, does not mean they engaged in a “rebellion” against the United States. A “rebellion” exists only when there is an organized effort to overthrow the existing government by force.

The Whiskey Rebellion of 1791-94 is a good example. Congress enacted a  federal tax on whiskey.  Farmers in western Pennsylvania who grew corn used to make whiskey were outraged. When federal tax collectors tried to enforce the law against distillers who refused to pay the tax, the farmers took up arms and attacked them. Tax collectors were whipped, tarred and feathered. The farmers held a political convention and appointed representatives to negotiate with peace commissioners sent by President Washington. They considered declaring independence and joining Spain or Great Britain.  In accordance with the Militia Act of 1792, the President obtained a judicial opinion from a Supreme Court Justice that confirmed that western Pennsylvania was in a state of rebellion. Only then did President Washington send federal troops to Pennsylvania where they successfully suppressed the rebellion.

Unlike the Whiskey Rebellion, none of the protesters in California called for the overthrow of the federal Government. Nor did they organize themselves into armed military units, assault federal officers, declare independence, or seek to ally themselves with a foreign power.  They did not advocate the forcible removal of President Trump from office, but they voiced their disapproval of his actions. They were not protesters, not rebels.

Words matter. In “Alice in Wonderland,” the Red Queen says, “When I use a word, it means just what I choose it to mean.”  Although the president might like to have the power to make words in the Constitution mean what he chooses them to mean, he has no such power. In this country, the courts have that power.  In Orwell’s novel “1984,” the Ministry of Truth declared,  “War is Peace, Freedom is Slavery, Ignorance is Strength.” The President’s lawyers are arguing that “Protest is Rebellion.” 

But it isn’t. Not yet anyway.

James Lobsenz is a civil rights attorney and an Ashland resident.