Category Archives: constitutional law

Continuing our series on Marvel’s Civil War event, we come to the issue of whether or not the SHRA amounts to a kind of conscription. We briefly discussed the draft and the SHRA in the comments to an earlier Civil War post, and conscription was discussed in a Mailbag a while back. We concluded there that drafting particular people, even on a named-individual basis, may be within congressional authority under the Constitution. But turning to the issue of the SHRA, we run into problems. Specifically, because the SHRA and related Initiative are pretty clearly intended to promote domestic security, and operate almost entirely within US borders, the Posse Comitatus Act comes into play.

The Act was passed in 1878 in the aftermath of Reconstruction, which followed the actual American Civil War. The thrust of the Act is that the United States armed forces—Army, Navy, Air Force, and Marines (the Coast Guard is excepted by case law)—are significantly limited in their ability to conduct operations on US soil. There have been very, very few times when the federal government has used actual soldiers to carry out its will on US soil.

Perhaps the most famous such event was when President Eisenhower ordered the 101st Airborne Division of the US Army to provide an armed escort for the Little Rock Nine, in one of the most dramatic incidents in the fight for public school integration during the late 1950s. Eisenhower also federalized the Arkansas National Guard, because then-governor Faubus was using it to attempt to block the integration of the schools. But it was really only the intervention of the governor that provoked this kind of armed federal response. Congress and the President have significant constitutional authority to use the National Guard and even the regular army to put down “insurrection,” and a state governor’s open, armed defiance of federal law surely counts. This power derives from the Insurrection Act, which gives the President the authority to use the regular army to put down insurrection and lawlessness.  The Act is in turn derived from Congress’s constitutional power “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”  The Insurrection Act was also invoked to quell the 1992 Los Angeles riots.

Apart from those incidents and the Civil War, the number of times the regular army has been deployed on US soil is pretty low. This is because the Posse Comitatus Act prohibits the domestic use of US soldiers without the express authorization of Congress. The Insurrection Act is one such authorization, but any circumstance which falls outside that mandate will require additional legislation, either dealing with a specific situation or creating a broader grant for a particular kind of activity.

In fact, in the real world, shortly after the Marvel Civil War event began, Congress passed an amendment to the Insurrection Act that would arguably authorize the use of the federal armed forces to deal with the threat of supervillain violence.  The 2006 amendments to the Act give the President the power to 

employ the armed forces, including the National Guard in Federal service, to restore public order and enforce the laws of the United States when, as a result of a … terrorist attack or incident, or other condition …, the President determines that domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and such violence results in a condition that … so hinders the execution of the laws of a State or possession … and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

In the wake of the Stamford Disaster it could be argued that a “terrorist incident or other condition” had occurred, the regular state authorities were incapable of maintaining public order, and the level of violence rose to the level of depriving people of their rights.  This broader authority under the amended Insurrection Act may authorize the Initiative’s activities, but it would not authorize the registration and conscription parts of the SHRA.  Thus, the SHRA would still have to be passed, and so it would make sense to include a more specific authorization for the Initiative rather than relying on the Insurrection Act.  Note, though, that the 2006 amendments were later repealed.  They were in force during most of the Civil War event, however.

It’s worth pointing out that the National Guard, as such, is really under the control of the respective states. The Guard has a close relationship with the regular armed forces, operates on a federal level under the Department of Defense, and is composed largely of inactive or reserve federal soldiers, but remains distinct from the regular army in that it answers ultimately to state governors, not the President, unless the President exercises his constitutional authority to take control of the Guard. Most notably, one cannot be drafted into the National Guard. Congress cannot draft people into state agencies, and though the states can theoretically mandate some kind of conscription into their own services, none have tried.

The issue with the SHRA is that if the Initiative is an activity of the US military, it runs into the Posse Comitatus Act, and if it is not, it is far from clear that Congress could use the draft to staff it. Again, while Congress has broad authority to conscript men into the military, that authority is limited to the military, as it is an implied power of Congress’s explicit ability to raise armies. If conscripts are not to be used for the army, the conscription power would not seem to apply.

How can one get around this seeming catch-22? Well, one could posit that the SHRA included specific authorization for the Initiative, which would meet the requirements of the Posse Comitatus Act. Remember, the Act does not say that the Army cannot be used on US soil, it says that the Army cannot be used on US soil without congressional authorization, which Congress is naturally free to grant. However, one wonders just how popular such a move would be given that the immediate justification for the SHRA was the Stamford Disaster, in which a bunch of superheroes acting irresponsibly resulted in the destruction of an elementary school. Subsequent stories indicate that the Initiative remains far from popular, and the Initiative training camp seems to be subject to organized protest just about around the clock. One can imagine that congresscritters would be reluctant to deviate so strongly from established US custom, particularly in light of popular opposition. The SHRA itself is frequently said to be popular, but the Initiative somewhat less so.

Some of the uncertainty here stems from the general confusion surrounding the SHRA itself. But the Posse Comitatus and related draft issues seem to be something that the writers could have gotten right if they’d wanted to. Congress is entirely free to authorize military action on US soil, and given that superhero teams would probably be limited to fighting problems which require their particular talents, one can see how certain members of Congress could think that would be a good idea. Whether or not there would be enough support for that provision to pass it is an open question, but it would have made this aspect of the Civil War even that much more consistent.

For the third post in our series on Marvel’s Civil War event (1, 2), we’re looking at the constitutional validity of the Superhuman Regstration Act (SHRA). This will revisit some topics we’ve already talked about in other contexts.

I. The SHRA and Federalism

One of the biggest questions about the SHRA is whether Congress can do it at all. The Act was clearly and explicitly supposed to be an analog of the Patriot Act, passed in the aftermath of the September 11 attacks and widely viewed as a significant expansion of federal power at the expense of civil rights. Whether or not the Patriot Act is a net positive for society is a pretty good litmus test for one’s political leanings, and the SHRA—had it been planned out in detail—might have been too.

But the SHRA does more than the Patriot Act does, and even (or perhaps especially) when it is deliberately seeking to expand the reach of federal power, Congress must still  deal with the Constitution, at least nominally. Whereas the Patriot Act mostly has to do with anti-terrorism intelligence gathering and transportation security, the SHRA targets a rather ill-defined category of American citizen for special treatment. One of the biggest ambiguities is exactly who counts as a “superhuman” under the Act. Mutants fairly clearly do, as do people who can, e.g. fly under their own power, leap tall buildings with a single bound, etc., but why technology-based heroes should need to register at all is never quite explained. Either way, something like the SHRA runs up against the limits of the powers Congress has been granted by Article I.

We talked about a similar fictional federal law—Watchmen’s Keene Act—way back in December. There, we discussed the constitutional validity of a federal act outlawing costumed vigilantes and concluded that while this may represent a rather unusual implementation of the Commerce Power, current jurisprudence suggests that such an act might well be permitted to stand by the Supreme Court. Given that the SHRA was passed in the aftermath of the Stamford disaster (which resulted in the deaths of over 600 civilians including dozens of children), popular opinion was strongly in favor of the SHRA, and the Court has proven reluctant to play the heavy when faced with a Congressional action which could go either way constitutionally but carries strong popular support.

II. The SHRA and Congressional War Powers

But the SHRA has something going for it that neither the real Patriot Act nor the fictional Keene Act do: Congress is explicitly empowered to “raise and support Armies. . . . to provide and maintain a Navy; to make Rules for the Government and Regulation of the land and naval forces,” etc. In other words, Congress has the power to raise armed forces for the national defense, and there is very, very little limit on its powers in this area. Indeed, the Supreme Court ruled unanimously that Congress’s power to raise and support an army gives it the right to link federal educational funding to the presence of military recruiters on university campuses. So if, as is sometimes indicated in the comic books, the SHRA was intended to form a kind of special branch of the federal armed forces, under the auspices of S.H.I.E.L.D. or something else, Congress has a lot of authority here. It certainly has the ability to authorize and fund a superhuman branch of the military.

But does it have the ability to force superhumans to register and work for the government? Maybe. Conscription is never directly addressed by the Constitution, but it has long been held that conscription is part of Congress’s power to raise armies, and the Supreme Court tends to unusually strong statements of congressional power when faced with this particular issue. See, e.g. Lichter v. U.S., 334 U.S. 742 (1948). But while the power of Congress to draft people into the armed services is generally beyond question, the power of Congress to draft specific individuals is something different.  For the most part, since World War II the draft has basically applied to all men equally.  Prior to World War II there was significant class discrimination, most exemplified by the paid substitute system of the Civil War.  But directly targeting specific individuals raises due process implications far beyond the skewed drafts of the 19th and early 20th Centuries. The draft is a pretty huge imposition upon civil rights, and while it is an imposition Congress is permitted to make, the Supreme Court might balk at permitting Congress to go so far as to shed even the pretense of fairness.

We talked about this in a Mailbag post and came to the conclusion that while this is an untested area of law, Congress’s sweeping war powers may permit them to target specific individuals for the draft. Again, the courts are very unwilling to restrict congressional authority where it is explicitly granted, and even though Amendments to the Constitution can and do curtail those powers, as there is no indication that any of the constitutional Amendments were specifically intended to affect the draft, it’s a fair bet that the Supreme Court would find that they do not.

III. Conclusion

Really though, what we have here is more evidence that the Civil War event could have been a lot better if the staff had simply decided what they wanted the law to do. The SHRA, or at least some form of it that does what the story needs it to do, probably would be constitutional. It is probably within Congress’s power, either the Commerce Power or the war powers, depending on how the authors want to spin that. And as we’ve said before, the story would have been a lot more balanced if the pro-reg side had been able to argue that the law was fair, constitutional, and well implemented. C’est la vie, we suppose.

This is the second in our series on Marvel’s Civil War event. We started with some framing issues, namely that there are problems with the way the series treats the law in general. Now we’re going to look at some of the specifics about how the stories implement the law as a plot point.

I. The Deadline

For the first few months of the event, much of the drama centered on what would happen at the stroke of midnight when the Superhuman Registration Act (“SHRA”) went into effect. Civil War #2 actually shows a screen in what is probably Times Square announcing “Registration Act Becomes Law” at midnight on that day. The gist is that it seems that Congress passed the bill and the President signed it into law, and the text of the bill said that it was slated to go into effect at some point in the future. Is that really how laws work?

Sort of. Yes, it’s entirely possible for a law to incorporate a delay in its effectiveness. The 2010 health care reform law contains numerous provisions which will not go into effect for years, and even the ones that are currently operative did not generally become so the instant the bill was signed. There are dates, specified in the bill, when certain provisions go into effect. This is actually pretty common, as at the very least, Congress tends to like at least some lead time to permit the Library of Congress to update the United States Code before the new code sections are to be effective. Having bills become effective as soon as they’re signed can be useful, but where time is not of the essence, picking a date in the near future tends to make the logistics of the process run a bit more smoothly.

So yes, if Congress were to pass a version of the SHRA, there would be a deadline beyond which superhumans would be required to register, and something big would likely go down on that day. But the deadline for registration would probably not be the date the law became effective. Why? Because before the law becomes effective, there is no way for anyone to register. The law which creates the need for registration also creates the process for registration, so before the law is effective, a superhuman who wanted to register would have no way of doing so. This is actually inadvertently hinted at in the way registration is portrayed in the stories. We never see superhumans headed down what amounts to the superhuman DMV. Instead, they’re all approached, in person, either individually or in small groups, by agents of S.H.I.E.L.D., asking them to sign the paperwork. Where that paperwork came from is never really addressed—Who wrote it? When? If it was before the bill became law, under whose authority?—but it’s all a pretty ad hoc process. We’ll talk about the constitutional problems with this in a minute, but that aside, even if Congress were silly enough to pass a the SHRA, it’s highly doubtful that they’d require each and every superhuman to be served with papers personally. The DMV may suck, but it does basically work, and there’s no reason to think that Congress wouldn’t create an analogous agency (or empower an existing one) to take care of this.

Still, though the portrayal is rather inconsistent and not without its problems, with two relatively minor tweaks the writers could still create a situation where the country was holding its breath as the clock ticks towards midnight on Registration Day. First, the law would go into effect without much fanfare, and it would authorize a federal agency to promulgate the rules and develop the process whereby superhumans could register. The agency would probably have a fixed—and short!—amount of time to do this. Second, the law would specify another date after the agency deadline, probably 30, 60, or 90 days, by which all superhumans would be required to register. It would be that date, not the date the bill became law or first went into legal effect, which would be the focus of the drama. And it would be that date, not the date when Tony Stark shows up at your door with a bunch of papers for you to sign, beyond which an unregistered superhero would be in violation of the law. That’s just how these things work.

II. Due Process

The reason they work that was isn’t just logistical. There’s also a very good constitutional reason for having things work this way: The Fifth Amendment right to due process.

Due process is basically the constitutional doctrine that no one can be punished or have their legal rights adversely affected without there being some kind of procedure. For example, if the government wants to imprison someone for committing a crime, there must be a trial, the defendant must have the option of a jury trial, the defendant must have access to competent counsel, and the prosecution must prove its case beyond a reasonable doubt—among other things. Similarly, in the civil context, no one can have a judgment enforced against them unless they were properly served, i.e. notified of the lawsuit.

So if the SHRA were to work the way it seems to in the comics rather than in the way outlined above (which, you will note, still lets the story proceed largely intact), a superhuman arrested for failure to register would have a number of arguments that this violated his constitutional right to due process.

First, there’s the fact that the law requires superhumans to register by a certain date without actually giving them any opportunity to do so. There do not appear to be any logistical structures in place to permit registration before the stroke of midnight when the bill became law, so arresting people ten seconds later is just unfair. Any hero who wasn’t served with papers could plausibly argue that he’d love to register if only someone would tell him how.

Second, there’s the timing issue. Cars must be registered, but most states give you a week if not a full thirty days to register a car after you buy it. Why? Because the DMV isn’t always open, because people have jobs, and because there’s just no good reason to insist that it happen right away. So when the cape-killers come to knock down his door at five seconds past midnight, why can’t a hero just say, “Gentlemen, my wife is sleeping, my kids are sleeping, and until you so rudely awakened me, I was sleeping. Can this not wait until morning?” Really, there doesn’t seem to be any reason why not. Heck, why not just make the deadline noon instead of midnight? But even that wouldn’t really solve the problem. People, even superhumans, have lives, things to do, obligations, responsibilities, the whole nine yards. If the government’s going to come along and add another thing to that neverending list, the least it can do is give people a chance to work it into their schedule. Complete failure to do that would almost certainly constitute a due process violation. Again, even if this were done right, there’s still plenty of drama to be had here. It would only have taken a panel or two to show that a month had gone by since the act become law, and that any superhuman who was going to register had his chance to do so. On with the cape-killers and the fighting and the angst.

III. Conclusion

Ultimately, this issue is kind of a toss-up. The writers got it wrong, but they did so in the name of drama, and as it turns out, a few relatively minor tweaks to the way the law was conceived would have permitted most of that drama. But what’s disappointing is that if they had adopted those tweaks, the pro-reg side would have seemed a lot more reasonable. Luke Cage wouldn’t have been able to make his rather overwrought comparison to race lynchings in the 1960s if instead of Iron Man and a squad of cape-killers, he had gotten a registration packet in the mail and a month to think about it. If he defies the law then, he looks less like someone who just wants to get a good night’s sleep without having his home invaded by federal troops and more like someone who really is taking a principled but morally ambiguous stance. And when Stark does show up, he’d be able to take the position that Cage had plenty of opportunity to trundle on down to the local registration office (or file a lawsuit opposing the law!), that he’d had every chance to do this like a civilized adult, but was now choosing the hard way. As the event seems to have wanted to explore those issues, getting the law wrong leaves the story more than a bit lop-sided.