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Jennifer Elsea

Jennifer Elsea

@jnklz.bsky.social

5.8K followers 290 following 1.2K posts

Legislative attorney at CRS. NatSec, IHL, international law, etc. Army Intelligence officer in previous life. Opinions mine. No skeets from this account are attributable to CRS.

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Jennifer Elsea @jnklz.bsky.social · Jun 20

Apparently the 9th Circuit interprets the 10 USC § 12406 requirement that “regular forces” are unable to execute the law means federal officers. Legislative history makes clear that regular forces means the regular armed forces as opposed to the militia.

Jennifer Elsea @jnklz.bsky.social · 7h

I think that’s about right.

Jennifer Elsea @jnklz.bsky.social · 7h

the same as § 3. I figure if anyone would have flagged the difference, it would have been AG Stanbery.

If anyone is aware of any historical discussion of this issue, please share!

It is impossible to imagine a case in which the construction from laws in pari materia has a more cogent application; for it is evident here that the law-maker, in framing the disqualifications of the voter, took special cognizance of the third section of the amendment, and weighed it word by word, following it literally for the most part, and rejecting deliberately the very word intended to embrace a military officer.

Accordingly we find, when that was the purpose, as we see it was in the third section of the constitutional amendment known as article XIV, Congress expressed that purpose very clearly.
That section provides that "no person shall be a senator or representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or any State, who, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
Thie third section is expressly referred to more than once in these acts. It is made, in fact, a part of these acts. Its lunguage is followed, word for word, in these disqualifying clauses, as far as was possible, except in the particular in which one is made to apply to eligibility and the other to the right to vote.

Jennifer Elsea @jnklz.bsky.social · 7h

I always thought so, but the grammar is a bit odd. Attorney General Stanbery in his dissection of the Reconstruction Acts in 1867, which incorporated not-yet-ratified 14.3 by reference, reads the oath required by the Act (which does say ‘against the United States’) as—>

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Official Opinions of the Attorneys General of the United States : United States Department of Justice : Free Download, Borrow, and Streaming : Internet Archive

Official Opinions of the Attorneys General of the United States Advising the President and Heads of Departments in Relation to Their Official Duties

Jennifer Elsea @jnklz.bsky.social · 8h

I never found any discussion of the difference. It seems everyone just assumed that “against the same” and “enemies thereof” referred to the United States.

Jennifer Elsea @jnklz.bsky.social · 23h

Or a lame duck, because it shot itself in the foot

Jennifer Elsea @jnklz.bsky.social · 1d

That would likely be a worthwhile endeavor.

Jennifer Elsea @jnklz.bsky.social · 1d

Yes, exactly. Recall, at the time militia could only be called up under those circumstances. It does not appear this law was meant to expand on it. Opposite, really.

Jennifer Elsea @jnklz.bsky.social · 1d

Yes, the idea was just to make calling up the Guard second. As was already practice by that time.

Jennifer Elsea @jnklz.bsky.social · 1d

I mean, it seems like the ultimate test of judicial deference. The statute really did start out as part of what became the Insurrection Act. bsky.app/profile/jnkl...

Jennifer Elsea @jnklz.bsky.social · 19d

Fun fact: Insurrection Act. The Act of Feb. 28, 1795 was the first permanent provision permitting the president to call forth the militia. By 1873, when all statutes in force were codified into the Revised Statutes, section one was split up:

Revised statutes table showing section one split into two sections destined for the title for the Militia and one for the Insurrection title

Jennifer Elsea @jnklz.bsky.social · 1d

Peanut Butter Cuds.

Jennifer Elsea @jnklz.bsky.social · 1d

For whom?

Jennifer Elsea @jnklz.bsky.social · 1d

This is just truth in advertising, though.

Jennifer Elsea @jnklz.bsky.social · 1d

It should be noted, the statute does not say “with regular forces,” it says “with the regular forces.” THE regular forces.

Jennifer Elsea @jnklz.bsky.social · 1d

You would think that. Initially, some commentators put it in quotes, underscoring its oddness. But many legal experts assured us the law is *not* the Insurrection Act and the words were thereafter elided. Reduced to three dots.

Jennifer Elsea @jnklz.bsky.social · 1d

As I recall, this was added in 1908, but I did not find much of an explanation for it. The 1908 amendment seems to have been driven by the NG Association (I believe it was called).

Jennifer Elsea @jnklz.bsky.social · 1d

The law does not require approval. Plus the court found that going through the state AG (or whatever) sufficed for the requirement.

Jennifer Elsea @jnklz.bsky.social · 1d

California did argue that, but court held that did not require Governor’s approval.

Jennifer Elsea @jnklz.bsky.social · 1d

If you’re a real legal history nerd, you might want to read about how that statute came to be even before “the regular forces” was added.

bsky.app/profile/jnkl...

Jennifer Elsea @jnklz.bsky.social · 19d

Fun fact: Insurrection Act. The Act of Feb. 28, 1795 was the first permanent provision permitting the president to call forth the militia. By 1873, when all statutes in force were codified into the Revised Statutes, section one was split up:

Revised statutes table showing section one split into two sections destined for the title for the Militia and one for the Insurrection title

Jennifer Elsea @jnklz.bsky.social · 1d

Having looked at how this language was interpreted at the time, I have found no difference. It was interpreted as against the United States.

Jennifer Elsea @jnklz.bsky.social · 1d

Why would he be unable to use the regular forces? If they were all deployed overseas, potentially. (Recall at the time militia could not be deployed overseas.)

Jennifer Elsea @jnklz.bsky.social · 1d

Judge Perry did note it in the Illinois case, although no parties appear to have raised it.

Jennifer Elsea @jnklz.bsky.social · 1d

This language was removed as surplusage during the 1950’s revision, so no proof Congress intentionally removed it to broaden the meaning.

Jennifer Elsea @jnklz.bsky.social · 1d

Yes. Key. Also potentially worth noting it was originally “the regular forces at his command.” Not language that would have applied to non-military at the time. There just weren’t other federal “forces” then and command likely referred to c-in-c relationship. Militia were not at his command yet.

Jennifer Elsea @jnklz.bsky.social · 1d

It’s pretty difficult to ignore if read in context.

Jennifer Elsea @jnklz.bsky.social · 2d

I responded to his post asking why nobody was addressing these words. So maybe? Unless already thinking about it.