A Constitutional Crisis Erupts in Oregon

It looks like quite a constitutional donnybrook is gathering in Oregon. This follows President Trump’s decision to, Governor Gavin Newsom says, dispatch 300 members of the California National Guard to Portland, despite a federal court order prohibiting him from sending members of Oregon’s guard. Late Sunday a judge blocked using California’s guard in Oregon, too, though that might not be the end of it. The power to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” is granted to Congress in Article 1, Section 8 of the Constitution. Back then this unsettled the states. The argument was won, though, when Alexander Hamilton issued 29 Federalist, one of the most caustic of the columns advocating the ratification of the Constitution in New York state.“Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens?” Hamilton wrote in 29 Federalist. Added he: “In times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition.”We offer that just as context to the latest crisis in Oregon. The constitutional Founders certainly anticipated the kind of thing that Mr. Trump is doing. We’ll see whether, as Oregon argues, Mr. Trump has broken the law. Militia law has grown more complex than in the founding era. Yet one of the most famous cases — Martin v. Mott — certainly makes it clear that it is the president who gets to decide whether a crisis exists.The case was brought by a private, Joseph Mott, who refused to report for the War of 1812. The court’s opinion was written by no less a sage than Justice Joseph Story. He stressed the military nature of the militia power. Wrote he: “We are all of opinion that the authority to decide whether the exigency has arisen belongs exclusively to the President, and that his decision is conclusive upon all other persons.” In the current crisis, according to CBS News citing officials in Oregon, the Trump administration deployed more than 100 California National Guard members to Oregon overnight into Sunday. CBS said more California guardsmen are expected after a judge temporarily blocked the administration sending Oregon guardsmen to Portland. Governor Tina Kotek is quoted by CBS as saying she expects more California guardsmen.“We have received no official notification or correspondence from the federal government regarding this action by the President,” Ms. Kotek said, according to CBS. “This action appears to [be] intentional to circumvent yesterday’s ruling by a federal judge.” Mr. Newsom said his state’s 300 National Guard troops being sent to Oregon had already been federalized. The judge, in any event, stepped in again last night.Which brings us back to the Founders. A White House spokeswoman, Abigail Jackson, is quoted by CBS as confirming the deployment, saying, “President Trump exercised his lawful authority to protect federal assets and personnel in Portland following violent riots and attacks on law enforcement.” It wouldn’t surprise us if, before this feud is over, we hear again from Joseph Story and Alexander Hamilton.________Correction: 29 is the number of the Federalist in which Hamilton addressed the militia power. The number was given incorrectly in the bulldog edition.

A Constitutional Crisis Erupts in Oregon

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