Article I, Section 10, Clause 3:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

The Supreme Court has stated that this provision contemplates the use of the state’s military power to put down an armed insurrection too strong to be controlled by civil authority,1 and held that the organization and maintenance of an active state militia is not a keeping of troops in time of peace within the prohibition of this clause.2 The Supreme Court has also held that the divestments of state power in this Clause, together with Congress’s express authority to build and maintain the Armed Forces under Article 1, Section 8, Clauses 12 and 13, reflect “a complete delegation of authority to the Federal Government to provide for the common defense” and show that the states renounced their right to interfere with national policy in this area in the plan of the Convention.3

Footnotes

1

Luther v. Borden, 48 U.S. (7 How.) 1, 45 (1849).

2

Presser v. Illinois, 116 U.S. 252 (1886).

3

Torres v. Tex. Dep’t of Pub. Safety, No. 20-603, slip op. 6 (U.S. June 29, 2022) (holding that the states waived their sovereign immunity under Congress’s Article I power pursuant to the plan of the Convention, such that Congress may enforce certain federal reemployment protections by authorizing private litigation against noncompliant state employers that do not wish to consent to suit).