Holding Court: State vs. Federal Rights: A Historical Perspective (Part 2)

Holding Court is a series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.

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By Joe Latwin

In Part 1, I discussed the use of federal military forces in the U.S. before the Civil War. In this Part, I ask you to ask yourself if you agree with the use of federal military forces in the U.S. since then.

After the Civil War, following Lincoln’s request that we follow our better angels, the federal government sought to protect the rights of former slaves during the period of Reconstruction. President Grant deployed Army units to enforce the law and assist local law enforcement to protect the rights of Black citizens. In the 1876 Presidential election between President Hayes and Samuel Tilden, there were allegations that the Army had been misused to rig the election. As a result, in 1878, Congress passed the Posse Comitatus Act, 18 U.S.C. 1385, which prohibits federal troops from being placed under the authority of anyone other than the President. It forbids the use of the military to enforce domestic laws unless expressly authorized by Congress or the Constitution. Remember, under the Constitution the President is Commander in Chief of the Armed Forces.

In 1916, Pancho Villa and his Division Del Norte, a remnant of the successful revolution in Mexico that ousted President Porfirio, attacked and burned the town of Columbus, New Mexico. The nearby Army garrison of 200 soldiers of the 13^th Cavalry responded and chased away Villa’s brigade. Thereafter, President Wilson authorized the Punitive Expedition, under Geneal Pershing to protect the border areas.

In 1932, 20,000 of World War I veterans and their families seeking immediate payment of bonuses that had been guaranteed to them under a law (“the Bonus Army”), set up camp in Washington, D.C. Initially, the local D.C. police maintained order until the Bonus Army organized marches and engaged in lobbying efforts directed at Congress. President Herbert Hoover sanctioned military intervention to clear the demonstrators. Led by Douglas MacArthur, supported by George Patton and future President Dwight D. Eisenhower, U.S. troops in the forcefully expelled of thousands of the World War I veterans using bayonets, gas grenades, and cavalry.

Five times in the 1950s and 1960s, Armed Forces were deployed to the South to enforce desegregation Decrees including the 1954 Brown v. Board of Education order to desegregate schools. In 1957, President Eisenhower ordered the 101^st Division (the same Division that was chronicled in “Band of Brothers”) when the Arkansas Governor directed Arkansas National Guard units to block integration of Little Rock High School. Eisenhower also nationalized the Arkansas National Guard. President Eisenhower was chastised for deploying Hitler’s Storm Troopers by a Southern Democrat Senator – a comparison that echoes what we hear today.

Federal troops were also deployed to major cities in the wake of riots after the assassination of Dr. Martin Luther King, Jr. as cities burned.

Thus, precedent shows regular and repeated use of federal armed forces within the United States. Whether we should use troops domestically in particular circumstances should be a matter of sound discretion.