Please quote that portion of the Militia Act which, in your opinion, makes state secession impossible.
If secession is made impossible by the Constitution, please quote the portion of the Constitution which, in your opinion, makes state secession impossible.
If secession is not made impossible by the Constitution, please explain, in your opinion, how the Militia Act or any other Federal law can usurp the Constitution.
Please quote that portion of the Militia Act which, in your opinion, makes state secession impossible.
The relevent portion of the law is as follows:
Third Congress, Session II, Ch. 36
February 28, 1795
[Section 1 deals with invasion or insurrection within a state and permits the President to call out the militias of the states upon application of the state's executive or legislature.]
Section 2. And be it further enacted, That whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, it shall be lawful for the President of the United States, to call forth the militia of such state, or of any other state or states, as may be necessary to suppress such combinations, and to cause the laws to be duly executed; and the use of militia so to be called forth may be continued, if necessary, until the expiration of thirty days after the commencement of the then next session of Congress.
Section 3. Provided always, and be it further enacted, That whenever it is necessary, in the judgment of the President, to use the military force hereby directed to be called forth, the President shall forthwith, by proclamation, command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited time.
[Section 4 limits the service of a militiaman under this act to no more than "three months, after his arrival at the place of rendezvous, in any one year". The remaining sections of the act deal with issues of courts-martial, pay, fines, and so forth.]
Some commentary:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." U.S. CONST., art. II, § 2, cl. 1.
Conduct of United States foreign policy resides in the Executive Branch, and Presidents have often used armed forces as a tool of diplomacy, ranging from supporting humanitarian missions in response to natural disasters to traditional "saber rattling" to discourage certain types of conduct by nations.
The President of the United States is bound as Chief Executive of the United States and Commander in Chief of its armed forces to defend the United States from attack: If war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. . . . [F]or war may exist without a declaration on either side.
The Prize Cases, 67 U.S. (2 Black) 635, 668 (1862) (internal quotation marks omitted).
In situations such as above, subsequent ratification by the Congress cures any defect of acting without express Congressional approval.
The Prize Cases, 67 U.S. at 671. The Court generally defers to the President regarding what actions must be taken to meet the military threat. The Prize Cases, 67 U.S. at 670.
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Walt