History Repeats Itself

Congress authorized the President "by using the militia or the land and naval forces of the United States, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any...domestic violence...if it - (1) so hinders the execution of the laws of the State, and of the United States within the State, that any part...of its people is deprived of a right, privilege, immunity or protection named in the Constitution and secured by law..." Act of April 20, 1871 (17 Stat. 14).

During the height of recent “domestic violence” (mayhem, arson, looting, destruction of both public/private property, assaults on police and citizens – we all agree these qualify as violence), President Trump opined on his power to employ National Guard and Federal military units to restore order. The more uninformed commentators on CNN proclaimed that the President had no such power, and, besides, it had never before happened in the United States. They never read Executive Order No. 10730 of September 24, 1957 by President Eisenhower. They never read Executive Order No. 11053 of September 30, 1962 by President Kennedy. They never read Executive Orders Nos. 11111 (June 11, 1963) and 11118 (September 10, 1963) also by President Kennedy. In these instances, the Presidents federalized the state's National Guard to restore order after a refusal of the States to adhere to Federal court orders.

I heard one commentator say the above use of Federal force was acceptable because it was meant for the purpose of desegregation, implying that the use of Federal force to suppress violent "Black Lives Matter" conduct would somehow be impermissible. But the above Executive Orders and accompanying Proclamations are color blind. They not written with regard to political motive. They are written to restore order threatened from any quarter of the political spectrum.

It is true that the Presidential Proclamations No. 2304 (September 23, 1957), No. 3497 (September 30, 1962), No. 3542 (June 11, 1963), No. 3554 (September 10, 1963), No. 3645 (March 23, 1965) enforced Federal laws against segregationists. But, the proposition of selective applicability is immediately countered by the Lyndon Johnson's Proclamations No. 3795 (July 26, 1967) restoring order in Detroit, No. 3840 (April 9, 1968) restoring order in the Washington Metropolitan Area, No. 3841 (April 9, 1968) restoring order in the State of Illinois, "in and about the City of Chicago...", and No. 3842 (April 9, 1968) restoring order in the State of Maryland. "in and about the City of Baltimore..."

Everyone of these Proclamations commanded all persons engaged in "domestic violence and disorder...to cease and desist therefrom and to disperse forthwith." No language can be more clear. In addition to the Proclamations, Lyndon Johnson deployed military forces to these cities to restore order.

It must be a matter of the highest magnitude when the President exercises power over the conduct of private citizens or persons. Such power can only exist when Congress provides for it. This is why it is so absurd when the identical people who deny ALL of the above laws, Executive Orders, Proclamation now blithely (and blindly) accept the utterly preposterous notion that the President can order all persons in the United States to wear face masks. Yes, the very same people.

In contrast, the President's power over the Executive Branch is unlimited, except for orders clearly in violation of the Constitution (the President cannot order all federal employees to say the rosary at the beginning of the work day, for example). The President can direct all Federal employees at work to recycle goods, or to refrain from employment discrimination based upon sexual orientation. The President can even extend such orders, the courts have said, to Federal contractors as did George W. Bush in mandating the use of E-verify by Federal contractors, or Trump did in 2017 to ban discrimination by Federal contractors based on LGBTQ status.

Certainly, the President can order all Federal employees, or those working under Federal contract, to wear face masks at work. It is a less certain proposition whether the President can apply such an order to Federal employees when they are not at work (for the purpose of minimizing Federal health insurance payments as one possible [but very strained] rationale). It is certainly beyond the Executive authority for the President to order every person in the United States to wear a mask. There is no statutory authority allowing the President to govern the conduct of all United States persons, any more than the President can order all such persons to recycle their waste refuse, or refrain from sugary drinks, because these are good public policy, good for the country, or even necessary for public health.

It's time to stand up with a backbone, unafraid, protecting and defending the US Constitution against the misinformation in the media.

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