Search This Blog

Tuesday, August 19, 2014

The National Guard, Armed Forces, and Civil Disorder

Events in Ferguson raise the question of the role of the armed force in domestic unrest.  From Charles Doyle and Jennifer Elsea, "The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law," Congressional Research Service, August 16, 2012:
Section 333 of Title 10 permits the President to use the Armed Forces to suppress any “insurrection, domestic violence, unlawful combination, or conspiracy” if law enforcement is hindered within a state, and local law enforcement is unable to protect individuals, or if the unlawful action “obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” This section was enacted to implement the Fourteenth Amendment guarantee for equal protection. It does not require the request or even the permission of the governor of the affected state.

The provision lay dormant after the end of Reconstruction until 1957, when President Eisenhower ordered a battle group of the 101st Airborne Division into Little Rock 246 and federalized the entire Arkansas National Guard 247 in order to enforce a court order permitting nine black students to attend a previously white high school. The proclamation to disperse cited both Sections 332 and 333 of Title 10, U.S. Code.248 By federalizing the Arkansas Guard, the President effectively deprived the governor of forces that had several days previously been used to enforce the governor’s view of law and order.249

Presidents Kennedy and Johnson followed the Little Rock precedent to deal with resistance to court-ordered desegregation in a number of Southern states. In 1962, after the governor of Mississippi attempted to prevent black student James H. Meredith from registering at the University of Mississippi at Oxford, President Kennedy sought to enforce the court order  with federal marshals.250 When marshals met with resistance from state forces and later a  riotous mob, President Kennedy federalized the Mississippi National Guard and ordered active Army troops  already gathered in the area to take action.251 The President’s proclamation to disperse named the governor and other state officials as forming the unlawful assemblies obstructing the enforcement of the court order, citing as authority both Sections 332 and 333.252 President Kennedy followed a similar course of action to confront state resistance to court ordered desegregation in Alabama twice in 1963.253 President Johnson cited the same authority in 1965 to deploy troops, both regular Army and federalized National Guard, to Alabama to protect civil rights marchers as they made their way from Selma, AL, to Montgomery.254


  • 247 Exec. Ord. No. 10,730, 22 Fed. Reg. 7628 (Sept. 24, 1957).  

  • 248 Proclamation No. 3204, 22 Fed. Reg. 7628 (Sept. 24, 1957).  

  • 249 Robert W. Coakley, Federal Use of Militia and the National Guard in Civil Disturbances, in BAYONETS IN THE  STREETS, 17, 30 (Robin Higham, ed. 1989). The governor had ordered the National Guard to enforce segregation by  preventing students from entering any high school that had previously been used exclusively for students of another  race, in defiance of a federal court order. See SCHEIPS, supra footnote 246, at 34.  

  • 250 See SCHEIPS, supra footnote 246, at 86-87.  

  • 251 Id. at 87-93; Exec. Ord. No. 11053, 27 Fed. Reg. 9693 (Oct. 2, 1962).  

  • 252 Proclamation No. 3497, 27 Fed. Reg. 9681 (Oct. 2, 1962).  

  • 253 Proclamation 3542, 28 Fed. Reg. 5705 (June 12, 1963); Exec. Order No. 11,111, 28 Fed. Reg. 5709 (June 12, 1963); Proclamation 3554, 28 Fed. Reg. 9861 (Sept. 11, 1963); Exec. Order 11,118, 28 Fed. Reg. 9863 (Sept. 11, 1963).  

  • 254 Proclamation No. 3645, 30 Fed. Reg. 3739 (Mar. 20, 1965); Exec. Ord. No. 11,207, 30 Fed. Reg. 3743. The governor was enjoined by court order from interfering with the march, and he refused to call out the Alabama National Guard to protect the marchers on the grounds that he did not want the state to foot the bill. See SCHEIPS, supra footnote 246, at 162-63.