The Law: See Here, General Kennedy

When the N.A.A.C.P. urged President Johnson to consider “taking over”race-torn Mississippi, Attorney General Robert F. Kennedy replied thatthe federal-state relationship forbids “preventive police action.” Lastweek General Kennedy (Virginia Law, ’51) was given a failing grade onhis answer by 29 law professors at Harvard, Yale, Columbia, N.Y.U.,Pennsylvania and Boston College. Whatever Kennedy’s political motives,said they in an open letter rebutting his “facile pronouncement,” thelegal facts are clear. The Federal Government has been fully empoweredsince Reconstruction to “take protective action in the circumstancesthat now prevail in Mississippi.” >Section 332 of Title 10 of the U.S.Code authorizes the President to use state militia and federal troops”whenever he considers that unlawful obstructions, combinations orassemblages, or rebellions against the authority of the United States,make it impracticable to enforce the laws of the United States in anystate or territory by the ordinary course of judicial proceedings.” Itwas under that statute that Presidents Eisenhower and Kennedy tookmilitary action at Little Rock in 1957 and the University ofMississippi in 1962. — Section 333 of Title 10 further empowers thePresident to use “any other means”—not only troops, but also federalmarshals—”to suppress, in a state, any insurrection, domesticviolence, unlawful combination, or conspiracy” whenever such an eventdenies equal protection to any class of citizens, or “obstructs theexecution of the laws of the United States or impedes the course ofjustice under those laws.” Obviously pertinent: Mississippi’s denial ofNegro voting rights guaranteed by the civil rights acts of 1957, 1960and 1964.

Some may argue that the Constitution leaves the preservation of peaceand good order exclusively to the states, said the law professors. Butthe argument has been without merit since 1879, when the Supreme Courtaffirmed the Federal Government’s power to command obedience to itslaws “on every foot of American soil.” Prudence may curb this power inMississippi, noted Kennedy’s critics. But it is “disappointing andironic that the Department of Justice, which has been bold beyondprecedent in successfully urging the Supreme Court that the judiciarypossesses the broadest powers to enforce the constitutional assurancesof equality, should now discover nonexistent barriers to executiveaction.”