Richard Bernstein: Five Flaws in the Government’s National Guard Argument

10 U.S.C. § 12406(3) authorizes a President to federalize a National Guard unit only if “the regular forces” are “unable . . . to execute the laws,” and then only to the extent “necessary to . . . execute those laws.”  The words “the regular forces” became part of the statute in 1908.  35 Stat. 399, 400 (1908).  On October 21, 2025, Georgetown Law Professor Marty Lederman filed an amicus brief in Trump v. Illinois No. 25A443, demonstrating that from 1775 through 1908 and well beyond, in federal statutes, Supreme Court precedents, and Executive Branch statements, the phrase “the regular forces” in §12406(3) referred exclusively to the regular military, and never to civilian law enforcement personnel.  On October 29, 2025, the Supreme Court directed both Illinois and the federal government to file letter briefs on November 10 addressing whether “the regular forces” refer to the regular military.  The federal government’s November 10 letter brief to the Supreme Court (“SG Ltr.”) has five flaws that undermine the federal government’s argument that every Administration has broad statutory authority to federalize National Guard units to execute federal law because “the regular forces” refers to federal civilian law enforcement personnel.

First, the SG Ltr. did not disagree with even one of the many instances quoted by Prof. Lederman where “the regular forces” refer only to the regular military.  And the SG Ltr. cited zero instances anywhere where civilian law enforcement personnel were included in the phrase “the regular forces” or anything similar.  Textualism would have to be tossed aside for the government’s interpretation of § 12406(3) to prevail.

Second, as noted above, the words “the regular forces” first became part of what is now §12406(3) when a 1908 statute, 35 Stat. 399, 400 (1908), amended a 1903 statute that had referred to “the other forces at his [the President’s] command.”  32 Stat. 775, 776 (1903).  The prior statutes in 1792 and 1795 instead had more broadly and expressly referred to using the militia as the back-up to federal civilian law enforcement personnel such as “the marshals.”  1 Stat. 264 (1792); 1 Stat. 424 (1795).  Extraordinarily, the SG argues that the current § 12406(3) means the same thing as the 1792 and 1795 statutes.  See SG Ltr. at 5.  But it is Statutory Interpretation 101 that changes to a statute are presumed to have “real and substantial effect.”  Stone v. INS, 514 U.S. 386, 397 (1995).  The letter brief of Illinois and the briefs of Prof. Lederman satisfy that rule by showing that the 1903 and 1908 statutory amendments had the real and substantial effect of codifying the practice since at least the Civil War of using federalized National Guard units as only a rare back up to the regular military for executing the law.  Illinois Ltr. Br. at 8-10; Lederman Amicus Br., filed Nov. 10, 2025, at 20-21.  In contrast, the SG reads the 1903 and 1908 statutory amendments to have zero effect.  The federal government thus improperly treats the 1903 and 1908 statutes as if they read and meant the same as the much differently-worded 1792 and 1795 statutes.

Third, the SG Ltr. at 3-4 argues that because 10 U.S.C. § 12406(1) and (2) do not condition the National Guard’s authority to repel invasions and rebellions on the regular military’s authority to do the same, there should be no similar condition to the National Guard’s authority to execute the law under § 12406(3).  But the words “the regular forces” do not appear in § 12406(1) and (2) and the regular military obviously has authority to repel invasions and rebellions.  Repelling invasions and rebellions are military functions for which Congress understandably took an all-hands-on-deck approach in § 12406(1) and (2).

In contrast, § 12406(3) addresses executing the laws, which is a civilian function absent exceptional circumstances.  It makes sense that the authority to use a federalized National Guard military unit to perform a civilian function such as executing federal statutes is dependent on the regular military’s authority to do the same.  There can be no doubt that a federalized National Guard unit is a military unit.  Indeed, all National Guard units are in either the Army National Guard or the Air Force National Guard, and 10 U.S.C. §§ 10106 and 10112 expressly make every federalized National Guard unit “a component of the Army” or “a component of the Air Force.”

Fourth, the SG Ltr. avoids stating clearly that a statutory prohibition on use of the Army and the Air Force does not satisfy “unable” in § 12406(3).  The Supreme Court should state unequivocally that a statutory prohibition does not constitute “unable.”  It would be nonsensical for “unable” in 12406(3) to justify federalizing a National Guard unit because a statute prohibits using the Army and the Air Force in the same circumstances.  This is because 10 U.S.C. § 12405 makes every federalized National Guard unit subject to that same prohibition.  Specifically, § 12405 makes every federalized National Guard unit “subject to the laws and regulations governing the Army or the Air Force.”

Likewise, it cannot be “necessary” for any National Guard unit to execute the laws under § 12406(3) in circumstances where §§ 10106, 10112, and 12405 make that federalized National Guard unit subject to a statutory prohibition on that very execution of the laws.  These statutes preclude any Administration’s attempt to misuse federalized National Guard units as a Junior Varsity Army or Air Force that the Executive Branch somehow has greater authority to deploy than a regular Army or Air Force unit.

Fifth, the SG Ltr. at 10-11 improperly asks the Supreme Court to act as a court of first impression and issue a drive-by ruling that the President has authority to deploy regular Army units in Illinois under both the Insurrection Act, 10 USC §§ 252-253, and a President’s implied “protective functions” Article II power.  To start, the federal government never sought relief from a lower court that the President had authority to deploy the regular military.  Belatedly seeking that relief in the Supreme Court is contrary to Sup. Ct. R. 23.3.  Moreover, the SG’s belated arguments contain legal flaws, not to mention contradicting the federal District Court’s findings of fact.

One legal flaw is that the SG never identifies which portion of 10 USC §§ 252 or 253 the federal government belatedly contends has been satisfied in Illinois.  Another is that although the SG’s Ltr. at 8 cites the 1964 Opinion by then-Deputy Attorney General Katzenbach on these statutory provisions, the federal government’s argument flatly contradicts that opinion, as shown by Illinois’s November 10 letter brief at 12-13.  Specifically, the Katzenbach Opinion requires either unconstitutional action by state officials, or wholesale abdication of enforcing the law by state officials, before 10 U.S.C. §§ 252-53 applies.  The SG does not claim, much less show, either here.

The SG’s argument about any implied Article II “protective functions” power also rests on a legal flaw.  § 12406(3) does not give authority to use a federalized National Guard unit to execute an implied Article II power.  In § 12406(3), the authority is limited to federalizing a National Guard unit to “execute the laws of the United States.”  That quoted limitation has been in the militia calling-forth statute since 1792.  1 Stat. 264 (1792).  As the contemporaneous 1788 Constitution shows, that phrase refers to federal statutes, not implied constitutional powers of the President.  Thus, the Supremacy Clause defines the “supreme Law of the Land” as: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made . . . .”  Art. VI, cl. 2.  Justice Scalia, joined by Chief Justices Roberts and Justice Alito, explained that “the Laws of the United States” means “Acts of Congress,” but that “acts of the President” pursuant to implied Article II powers “are not” in any of the three categories of “the ‘supreme Law of the Land.’”  Zivotofsky v. Kerry, 576 U.S. 1, 83-84 (2015) (Scalia, J., dissenting).[1]  Clause 1 of § 2 of Article III also distinguishes between “this Constitution, the Laws of the United States, and Treaties made . . . .”  At a minimum, the Supreme Court should not decide the SG’s belated arguments on the fly.  Instead, the federal government should raise their new arguments in the federal District Court as the case proceeds.

The SG is partially correct about one thing.  That is, under the limited circumstances where “the regular forces”–the regular military–have statutory authority to execute federal statutes, § 12406(3) gives the President discretion instead to federalize a National Guard unit from the State at issue for the “calming effect” in comparison to deploying a regular Army unit.  SG Ltr. at 12.  This reflects that any such discretionary choice by the President is only between military units, and does not allow the President to deploy any part of the military in the first place where no statute has authorized military intrusion.

The context, however, would be quite different, if assuming, for the sake of argument, “the regular forces” meant federal civilian law enforcement personnel.  Under that assumed interpretation, a President invoking § 12406(3) would be seeking to federalize a National Guard unit to perform a civilian function, not making a choice between statutorily-authorized military units.  Thus, under that assumed interpretation, the “unable” condition would have to be subject to the normal factual review of the federal courts.  Otherwise, any President could run roughshod over our nation’s tradition that the Executive Branch rarely has statutory authority to inject any part of the Army or the Air Force–including a federalized National Guard unit–into our domestic life to execute federal statutes.

Indeed, the Defense Department’s U.S. Northern Command, which is commanded by generals in the regular military, declared on November 14 that “our Title 10 footprint in Portland, Los Angeles, and Chicago” –the federalized National Guard units–would “ensure a constant, enduring, and long-term presence in each city.”  U.S. Northern Command (@USNorthernCmd), X (Nov. 14, 2025, 11:47 PM) (emphasis added). Northern Command stated that “[o]ur troops in each city (and others) are trained and ready, and will be employed whenever needed to support law enforcement and keep our citizens safe.”  Id.  (emphasis added).

If the federal government’s interpretation of § 12406(3) prevails, get ready for a future Democratic President frequently to federalize and deploy National Guard units as a domestic Army–carrying military weapons and in military uniforms–to enforce environmental statutes, civil rights statutes, various federal statutes that might apply to conservative protesters near abortion clinics and elsewhere, and more.  Our citizens and our prized National Guard members deserve better than that.  The Supreme Court should put a stop now to the recurring militarization of federal law enforcement—that Congress has not authorized–before it becomes a permanent and irretrievable feature of the American experience.

[1] The Zivotofsky majority opinion did not disagree, as it ruled on other grounds.

The full article is linked here.

On November 10, 2025, the Society for the Rule of Law Institute filed an amicus brief at the Supreme Court in Trump v. Illinois. To read the brief in its entirety, see here.