What does the Constitution Say About an Uprising?
by Ben Sheehan
June 9, 2020
This Interview with Ben Sheehan, author of the new book “OMG WTF Does the Constitution Actually Say?” was conducted and condensed by franknews.
frank | The most urgent question is what is the President's real power – what is he allowed to do?
Ben Sheehan | The truth is that the Constitution doesn't give the president that much direct power. I think in modern times we tend to focus on the executive branch as the most powerful part of our federal government, but that is not the original design. We've been told our entire lives that we have three co-equal branches of government, and that they have checks and balances. Checks and balances doesn't necessarily mean an equal distribution of power. The power is not evenly divided in thirds among the branches. Congress, made up of representatives of the people, is supposed to be the driver of the federal government.
The president can pardon federal crimes. The president acts as the ambassador on the world stage representing the country. They appoint Cabinet officials, as well as justices to all the federal courts. Of course, they have to be confirmed by the Senate, but that is a sweeping power because justices on the Supreme court, the circuit court and the district courts serve for life.
But really where the president's power lies is as Commander in Chief of the Army, the Navy and what used to be called the Militia, but is now referred to as the National Guard. The power of that role is not specified in the constitution, so it is sort of up in the air as to what that exactly extends to. Congress has the power to set regulations, fund, and discipline the military, but when they are called into active service, they follow the president.
How does that come into play or conflict with the states, specifically as we are seeing now with Trump threatening to send in armed forces into individual states?
I think it's important to discern between three different levels of law enforcement. We're talking about the federal law enforcement, state law enforcement, and local law enforcement. Cities and counties have their own police departments. There are state defense forces that serve at the will of the governor. And then there is the federal law enforcement. Part of the president's job, and really the job of the government in general, is to provide for the common defense. That includes both defending the country from outside invaders, and preventing uprisings.
States can request federal government forces to help protect them from a domestic uprising. If there was an insurrection, or a domestic terrorist organization threatening the state, the state legislature can request federal military assistance, or the governor if the legislature can’t meet. You saw this a lot in the wake of the Civil War during Reconstruction. There was all this white suprematist violence, the KKK, the White League and the Red Shirts, and certain states would request the federal government's help to enforce civil rights laws in the wake of the Civil War.
Is that considered martial law?
Martial law refers to the military enforcing a system of law and order. There is nothing specifically about it in the Constitution pertaining to the president. The Constitution does mention Congress’s ability to suspend habeas corpus, which is the ability to see a judge if you’re arrested and you don’t think you did anything wrong. But martial law vaguely falls under the President's power as the Commander in Chief. It is something the courts have ruled on over time.
The scary thing is that when it comes to issues that both the state and the federal government have claims to authority over, according to the Constitution’s Sixth Article, federal law trumps state law. But if federal powers are vaguely defined -- like, the full extent of the president’s power as Commander-in-Chief -- then the federal government could abuse its power over the states.
It is. And part of the reason there isn't a lot of martial law in the document to begin with is because the founders were trying to decentralize the power. At a time of crisis, when you're at war, there needs to be a chain of command, which is why there is one person at the top. But they didn't want to give someone the power to invade states, or to take over cities for no reason. That was explicitly what they did not want to happen. In fact, the whole reason the Bill of Rights exists, is to protect the rights of the individual from a tyrannical federal government.
One thing that I really learned during this process of writing my book is that the federal government is designed to have limits. It is only allowed to do what the Constitution says it can, and anything beyond that is a state issue, or a local issue.
If the Constitution doesn’t say a state can’t do something, and it's not reserved to the federal government, it is out of federal jurisdiction.
Where does DC fall under this? And with Trump having deployed the military into the streets of Washington, DC and now the mayor is calling for them to be removed. What does that power structure look like?
Washington D.C. is carved out in the Constitution as the seat of the federal government. In Federalist 43, James Madison makes the argument that even though D.C. isn't a state, it would be allowed to have its own local government. D.C. could decide things as a municipality, rather than having the federal government have complete control. But with the Mayor of DC, Muriel Bowzer, fighting back against President Trump, we see the grey areas of federal vs. local control of the capital playing out. But she clearly says that the federal government’s help is not needed and that the protests are peaceful.
It's interesting to think of the Third Amendment in light of this, because when the founders were writing the Declaration of Independence, King George was sending over defense forces from Britain to keep the peace. Obviously there were no hotels or AirBB, so they would just force their way into people's homes and stay there without their permission- eat their food, and sleep in their beds. That was the impetus behind the idea of preventing the federal army from being able to quarter in someone's home. Right now, the federal government is not exactly forcing their way into individual people's homes, but they are occupying hotels, which are private businesses in the city of D.C. So again, it is a power struggle between the municipal government and the federal government.
It is also interesting to think about how the call of more help seems arbitrary, and anecdotal. You think of Megan Mccain's tweet about New York when she wasn't even there, or about news coverage of LA. I mean I’m in LA and I look out my window and I see a tank sitting in the middle of the street, even though it mostly feels normal here. What qualifies justification for calling in extra military service?
This goes back to what I mentioned at the top, where cities can request help from states, and states can request help from the federal government. But again, the president can’t randomly insert himself in the affairs of a self-governing city if there isn’t a problem. His powers are dictated by the Constitution, and also by the laws Congress passes. This goes back to the whole idea that Congress is really the driver of our government. The president can only enforce the federal laws that Congress passes.
However, Congress is so broken. It is heavily partisan due to gerrymandering and campaign finance loopholes. Little is getting done. In response, you have presidents trying to legislate through executive orders, or you have the Supreme Court using opinions to strike down laws, which is actually not in the Constitution by the way.
So is the way to understand the general split in power between Congress and the president as the drafter or laws and the enforcer of laws?
I think we have to start thinking of the presidency as the top law enforcement job in the country, because that is what the role is.
It is a law enforcement job. It doesn't make laws, but it enforces them. And with enforcement comes the power to oversee the enforcers. Everyone from generals all the way down through the police in many regards.
But the thing is, Congress has slowly delegated to the executive branch. A lot of this started in the 70s, and you are seeing the fruits of that pay off now. For example, The War Powers Act allows the president to act without advanced congressional approval, as long as the President informs the Speaker of the House and the head of the Senate within 48 hours. It gives the President leeway to act alone, as long as it is in the “national interest.”
This didn't start under Trump. It goes back a long time by Congress just outsourcing its power to more and more of the executive branch. A lot of it was done, based on the good faith of the person at the top. When we don't have someone who's acting in good faith, suddenly we have to reckon with the fact that maybe we shouldn't have given them all that power in the first place, and we have the power to change that in November.
Speaking of November, I think one of the biggest concerns is a fear over Trump interfering with the election. Does the Constitution grant the president any power over that?
That is definitely a common misconception about the president's power that I have been hearing lately.
The president has no power to cancel the election, or move the election date. That is purely in the hands of Congress. There are barely any emergency powers in the Constitution, and certainly not one that gives the president the ability to interfere with an election.
And the reason there are so few emergency powers is so that if there is a crisis, it doesn't devolve into anarchy.
What can Congress technically do?
Congress has the ability to move the election date if they want to. They also have the ability to override state legislatures in each state around their voting laws. There is currently a bill in the Senate that is sponsored by Ron Wyden and Amy Klobuchar that would mandate that every state offer no-excuse-absentee voting by mail. Congress can override the states on the times, places and manner of elections, and as such they can implement nation wide vote-by-mail.
What can or should Congress be doing with that power to safeguard elections?
To begin, they could give financial support to states, which could go to their county election boards and local governments, to help them strengthen their election security. There is already a bill that's been proposed around election security that will strengthen websites and voter registration databases against cyber attacks from foreign or domestic adversaries.
They could also overrule certain discriminating state level policies. States with the history of discrimination used to have to get permission from the federal government to change their voting laws. According to the Voting Rights Act of 1965, if certain states wanted to change their voting laws, they had to get permission through the federal government. That was to make sure that they weren't disenfranchising people of color. In 2013, the Supreme Court struck down that part of the Voting Rights Act. That decision opened the door to a lot of voter-id laws. Hours after the decision came down, Texas started enforcing a really strict voter ID law. Georgia started kicking more people off the voter rolls. States were mailing postcards to voters, and if they didn't return them in a quick enough time, they got removed from the registration roles as if they had moved out of the state or as if they died. States would purposely not deliver enough voting machines to communities of color,and deliver more than enough voting machines to Republican districts. These are all things that are done at the state level, but things that Congress ultimately has the ability to override.
For anything to get done, it's going to require passing the House, passing the Senate and getting a presidential signature. Unless two thirds of the house, and two thirds of the Senate vote to override the veto. Right now it doesn't look like we're getting two thirds of the Senate and two thirds of the House to agree on anything. So even though Congress does have this power, who knows if they'll actually be able to use it.
We have 150 days left. What really can Congress do in that amount of time? Obviously you just outlined the ideal goals, but is likely within that time frame?
In theory, they could pass legislation quickly to affect any number of things for the election. But in reality, we are seeing the fact that Congress can’t agree on anything.
What is supposed to be the engine of our government is broken, it is malfunctioning. Partisanship has completely blocked any action.
They can't even pass an anti-lynching bill. We can't agree in 2020 to pass a federal law to make lynching a federal hate crime? So it feels nearly impossible to pass voting laws.
This is one of the reasons in 2018 my organization was so focused on Secretaries of State. I was worried that we were not going to have a Congress that could agree on things, so it was going to come down to the state level. I would say that it is important to get active in putting pressure on your state officials. Know who runs the election in your County. Volunteer as a poll worker. You can provide rides for people to polling places. You can take them to register to vote. We can put pressure on Congress, but because of how broken it is, there's a lot that can -- and must -- be done at the local and state level. It looks unlikely that Congress is going to pass important legislation in the next 150 days, so citizen pressure -- and action -- is crucial.