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this post was submitted on 18 Jul 2024
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I hate to break it to you, but yes, the President does have that power as the Commander in Chief. Multiple States also have the same codified in State law, and the Governor can do so as well. There are prescriptions for both volunteer requests from the unorganized militia, as well as drafting them as well.
Absolutely not.
Here is Virginia's laws on this matter for example, which mirror multiple other states laws:
Article 8. Unorganized Militia. § 44-85. Regulations and penalties.
Whenever any part of the unorganized militia is ordered out, it shall be governed by the same rules and regulations and be subject to the same penalties as the National Guard.
1930, p. 965; Michie Code 1942, § 2673(71); 2015, c. 221.
§ 44-86. When ordered out for service.
The commander in chief may at any time, in order to execute the law, suppress riots or insurrections, or repel invasion, or aid in any form of disaster wherein the lives or property of citizens are imperiled or may be imperiled, order out the National Guard and the inactive National Guard or any parts thereof, or the whole or any part of the unorganized militia. When the militia of this Commonwealth, or a part thereof, is called forth under the Constitution and laws of the United States, the Governor shall order out for service the National Guard, or such part thereof as may be necessary; and he may likewise order out such a part of the unorganized militia as he may deem necessary. During the absence of organizations of the National Guard in the service of the United States, their state designations shall not be given to new organizations.
1930, p. 965; Michie Code 1942, § 2673(72); 1958, c. 393.
§ 44-87. Manner of ordering out for service.
The Governor shall, when ordering out the unorganized militia, designate the number to be so called. He may order them out either by calling for volunteers or by draft.
1930, p. 965; Michie Code 1942, § 2673(73); 1944, p. 25; 1958, c. 393; 1984, c. 765.
§ 44-88. Incorporation into the Virginia Defense Force.
Whenever the Governor orders out the unorganized militia or any part thereof, it shall be incorporated into the Virginia Defense Force until relieved from service.
1944, p. 25; Michie Suppl. 1946, § 2673(73); 1984, c. 765; 2011, cc. 572, 586.
§ 44-89. Draft of unorganized militia.
If the unorganized militia is ordered out by draft, the Governor shall designate the persons in each county and city to make the draft, and prescribe rules and regulations for conducting the same.
1930, p. 965; Michie Code 1942, § 2673(74).
§ 44-90. Punishment for failure to appear.
Every member of the militia ordered out for duty, or who shall volunteer or be drafted, who does not appear at the time and place ordered, shall be liable to such punishment as a court-martial may direct.
1930, p. 965; Michie Code 1942, § 2673(75); 1958, c. 393.
That's great.
It's still not a thing.
The only body with the authority to raise an Army is Congress. And they have a draft system. Which they're also trying to get rid of because it's massively unpopular.
For everyone else the 13th amendment applies. You cannot force someone to work for you. And that Virgina law is from 1930, so unconstitutional from day 1.
If people want to volunteer that's a different story, but then again, we have organizations for that, state guards, national guards, state reserves, rural emergency volunteer teams, etc.
The idea that any state could draft its people into a militia is ridiculous and unconstitutional.
So your argument is sticking your fingers in your ears and shouting "la la la, I can't hear you"? Just because you don't believe that a law would ever be used, doesn't mean it isn't real and cannot be used. Just because a law was ratified in 1930 doesn't mean it no longer exists. There is not statue of limitations on how long laws exist for, and laws don't die of old age.
Yeah, no shit the congress is the only body that can raise an army. No one is arguing otherwise. The army and the militia are two different things. The President activates the National Guard to active duty, done by Executive Order.
Just because the draft is unpopular doesn't mean that you couldn't be drafted tomorrow if WW3 broke out. Until it is repealed, it is still the law and can be used. Until there is a lawsuit that takes one of the many laws surrounding the unorganized militia before the Supreme Court and it gets ruled unconstitutional, it's still legal. Texas, California, New York, Ohio, and Florida all have similar laws to Virginia, none have been struck down as unconstitutional or a violation of the 13th Amendment.
The idea that a foreign power could invade the continental US or that we could have another actual civil war is or should be ridiculous, but that in and of itself won't stop either of those things from happening. If they do happen, watch how quickly people get drafted into their State Guard when a shooting war is taking place.
No, my idea is that the law is unconstitutional and the only time I can even find a governor trying to use it was to break a strike. Forcing the strikers to work, to which the answer was, "fuck you check the Constitution".
And you may want to semantically split hairs on militia but it's still a military unit, and as such, an Army. Which neither the governor or President has the authority to raise on their own. The Constitution is shockingly clear on this, I'm not sure how this is even an argument.