Battle of the Riders — Part III
I just wanted to tie up a loose end of this thread that I started in December. In 1879-80 Congress and President Rutherford B. Hayes fought a pitched battle over legislation that would have revoked the federal government’s authority to use troops or armed civilians (i.e., U.S. Marshals) to protect polling places. The Democratic Majority in Congress put this provision into the annual military appropriations bill and dared the President to veto that spending and, in effect, shut down the Army. Hayes called that bluff and issued a veto (actually, several vetoes) of this bill on the merits and because he thought that the practice of legislative “tacking” was unconstitutional.
This extended debate contains three lessons for us. One concerns the constitutional issues surrounding a government shutdown, which could become relevant again if Congress tries that this year. Another involves exploding the myth that Republicans stopped caring about protecting African-Americans after the disputed 1876 election, as Hayes went all-out to prevent the repeal of federal voting protection.
The third idea that is emerging from my research was how this debate was shaped by competing conceptions of the Commander-in-Chief Clause. Congress took the view that it could broadly restrict the President’s authority to deploy troops, while the President said that this was inconsistent with his constitutional duties. It is interesting that one year earlier, in 1878, the “posse comitatus” statute was enacted prohibiting the use of federal troops for domestic law enforcement. That is a significant limit on presidential authority, and the debate about troops at polling places was an extension of that issue.
I’m not sure whether this will be an Article. I have to wade through hundreds of pages of the Congressional Record to figure that out. We’ll see.