In the closing days of 50 BC, the Roman Senate declared that Julius Caesar’s term as a provincial governor was finished. Roman law afforded its magistrates immunity to prosecution, but this immunity would end with Caesar’s term. As the leader of the populares faction, Caesar had many enemies among the elite optimates, and as soon as he left office, these enemies planned to bury him in litigation. Caesar knew he would lose everything: property, liberty, even his life.
Caesar decided it was better to fight for victory than accept certain defeat. In January 49 BC, he crossed the Rubicon River with his army, in violation of sacred Roman law, and begin a civil war. “Alea iacta est,” said Caesar: The die is cast.
In the closing days of 2020 AD, the American media has declared that Donald Trump’s term as president is finished. As the leader of the deplorables faction, Trump has many enemies among the elite irates, and as soon as he leaves office, these enemies plan to bury him in litigation. Bill Pascrell, the Chairman of the House Ways & Means Subcommittee on Oversight, has officially called for the prosecution of President Trump for “government crimes” following his term in office. In his thirst for vengeance, Pascrell has made it clear there will be no Nixonian escape by pardon:
Like Caesar, Trump now must fight for victory or lose everything. Come January 2021, will Donald Trump decide to cast the die and cross the Rubicon? He might.
The same people who warned us that Trump is worse than Hitler will now scoff: “Donald Trump is no Caesar!” That’s true. Trump is in a much better position than Caesar was.
Unlike Caesar, Trump can cross the Rubicon legally. He need violate no sacred law. He has all of the legal power he needs to act and win. Congress has given it to him. All he needs to do is invoke the Insurrection Act.
Invoking the Insurrection Act
During the 2020 summer protests and riots, commentators on both the Left and Right argued about whether Trump would use the so-called Insurrection Act against the crowds. Strangely, no one seems to be considering the fact that Trump could use it now.
The history of the Insurrection Act dates back all the way to 1797, and the legislative record is so long and tortured that it’s woeful to contemplate. Suffice to say that in the 21st century, the Insurrection Act has been pleasantly re-titled “The Enforcement of the Laws to Restore Public Order Act” and codified in four sections of the US Code:
- 10 USC § 251 Federal Aid for State Governments
- 10 USC § 252 Use of Militia and Armed Forces to Enforce Federal Authority
- 10 USC § 253 Interference with State and Federal Law
- 10 USC § 254 Proclamation to Disperse
That’s powerful language! Consider:
- The authority is vested solely in the President. He does not need the invitation of state governors to intervene, nor does he need the approval of the Supreme Court. Older provisions of the Insurrection Act required either a governor or a judicial proceeding to authorize its use, but these limits were purposefully removed by Congress in § 253.
- There is no time limit on the President’s activities. Older versions of the Insurrection Act limited the use of force to brief periods of time and then required legislative approval. Those limits, too, are also gone.
- The President is allowed to use any means that he (and again, he needs no one else) considers necessary. This includes using the armed forces (which enables him to bypass the Posse Comitatus Act) and using the militia (which we’ll discuss in more detail below).
- The President’s ability to use force isn’t restricted to actual rebellion or insurgency. He can act against merely unlawful combinations and conspiracies. To be clear: If the President decides that a conspiracy has deprived people of a right and believes that authorities fail or refuse to protect the right, he can send in the troops.
“I, President Trump, have determined that a conspiracy has deprived 70 million Americans of their right to vote and that the other authorities are refusing to protect this right. I therefore order the suppression of this conspiracy by any means necessary.”
And with that, Trump will cross the Rubicon.
Horror and Denial: He Shouldn’t! He Wouldn’t!
If you are of libertarian leanings, you are likely to feel horror: “Why on Earth did a free republic vest so much power into one man?”
You should feel horror. The Romans required a Senate vote to appoint a Dictator with emergency powers, and that Dictator served a strict six-month term limit. In America, we’ve given the President the right to decide when he should become a Dictator and for how long he can retain his emergency powers.
This was certainly unwise; but it is done. “Game over, man.” The power has been given. The power can be used. And it probably will be used if the Democrats continue on their foolish campaign to seek vengeance on Trump.
If you are in the grip of normalcy bias, you are likely to be in denial: “Trump wouldn’t dare! The US Armed Forces would remove him from office! The troops wouldn’t respond to his call!”
Pompey said the same about the Roman legions. He was wrong. He was so wrong, in fact, that his decapitated head ended up in a stylish gift box presented to Caesar as a present when he landed in Egypt. Don’t be Pompey.
Now, I don’t expect beheadings (just helicopters) but I do expect that the US Armed Forces would obey Trump’s orders. Although he is not popular with the Pentagon, Trump remains popular with actual soldiers, especially with white middle-class men who make up a disproportionate number of the infantry, armor, pilots, special forces, and other combat arms. (His support among law enforcement personnel is even higher. The men with guns love Trump.)
But let’s assume the Armed Forces are paralyzed, split, or neutral. If so, Trump still has millions of troops available: The militia.
Calling Up the Militia
The militia is defined by 10 U.S. Code § 246:
This is, again, an incredibly powerful piece of legislation. Put into plain English, and ignoring a few minor exemptions (postal workers, etc), Trump commands an unorganized militia consisting of every able-bodied man between the ages of 17 and 45. The men don’t need to be in the National Guard. They don’t need to be veterans. They don’t need to be anything except 17 to 45 and able-bodied.
Remember that 10 USC § 253 grants the President the power to use the militia to take such measures as he considers necessary to suppress conspiracy. The militia is statutorily defined to include the unorganized militia.
Therefore, when you combine 10 USC § 253 with 10 USC § 246, the President can call on every able-bodied male age 17 to 45 to take any means he deems necessary to suppress the conspiracy to deny Americans their voting rights.
How many men is that? With 328M Americans, 50% of them male, and 40% of them between 18 and 45, that’s 65M militia members.
Organizing the Unorganized
When Trump calls up the unorganized militia, how does it get organized? What Federal statutes, regulations, and case law govern what happens next? The answer… Well, there isn’t one.
“The Citizen-Soldier under Federal and State Law”, a lengthy law review article published in 94 W. Va. L. Rev (1992), reviewed all of the available statutes, regulations, and case law relating to the use of citizen-soldiers. Turns out, there’s not much about the unorganized militia. In fact, in the entirety of the 20th century, there has only been one case:
Let’s quickly look at what happened. According to the Encyclopedia Virginia, the crisis began when the International Brotherhood of Electrical Workers (IBEW) union announced that its members would strike against the Virginia Electric and Power Company unless its demands were met by a deadline of April 1, 1946.
At the time, “Virginia law divided its militia into four classes: the National Guard, the Virginia Defense Force, the naval militia, and the unorganized militia. This latter unit hypothetically consisted of all able-bodied males between the ages of sixteen and fifty-five who could be summoned by the governor if needed.” (Virginia law thus mirrored 10 U.S. Code § 246.)
Two days before the strike deadline, Governor Tuck “unilaterally decreed that all IBEW employees were summarily drafted into the unorganized militia and ordered, on pain of court-martial, to continue at their jobs.” Shortly thereafter, the dispute was resolved and questions as to the constitutionality of Tuck's actions were left unresolved. However, the next month, US President Harry S. Truman “used a similar tactic in threatening to draft into the U.S. Army railway workers whose union, the Brotherhood of Locomotive Engineers and Trainmen, was calling for a nationwide strike; as in the VEPCO affair, the two sides reached a settlement at the eleventh hour.”
So in the only recorded instance in the last 100 years, an unorganized militia was called up, drafted, and ordered to perform particular duties on pain of court-martial, unilaterally by a governor, without any other legislative action, new statute, or court order. And rather than condemn the governor, the US President thought this idea was so awesome he used it himself the next month on the federal militia.
With no apparent limits whatsoever, the Insurrection Act combined with the Militia Act isn’t just a blank check; it’s a blank check book. Apparently our government can call on its citizens to do whatever it wants! I would protest this, but I’m currently on lockdown.
