Richard Bernstein National Guard Units Are Not The All-Purpose Back-Up Federal Police For All Federal Agencies

On Friday, October 10, 2025, Judge April Perry of the Federal District Court for the Northern District of Illinois ruled that the Administration was not authorized by 10 U.S.C. Section 12406(3) to federalize the National Guard for deployment in Illinois to assist ICE. Section 12406(3) authorizes federalization only if “the President is unable with the regular forces to execute the laws of the United States.” The Administration argues that “the regular forces” encompasses every agency of the federal government and not merely the regular military. Judge Perry’s opinion comprehensively showed that “the regular forces” includes only the regular military, carefully analyzing the statutory language and its history as well as historic constraints going back to the Founding on using either the militia–now called the National Guard–or the regular military to execute federal law domestically. As the Administration has not even argued that the National Guard should be federalized because the regular military is unable to execute federal law in Illinois, this provided one basis why the National Guard could not be federalized. Judge Perry’s statutory interpretation of “the regular forces” makes eminent good sense.

As background, the regular military usually is barred by statute from executing federal or state laws. See 10 U.S.C. Sections 1385 and 275. But in limited circumstances, the regular military is authorized by statute to execute the laws. See 10 U.S.C. Sections 252-53 (the “Insurrection Act”). Neither a broad or a narrow interpretation of “regular forces” in 10 U.S.C. Section 12406(3) would alter those restrictions on the regular military itself. The question is whether Section 12406(3) authorizes the National Guard to be federalized to do exactly what Congress by statute has forbidden the regular military from doing. It does not.

Start with what “unable” means in this statutory context. “[U]nable with the regular forces to execute the laws of the United States” in Section 12406(3) means that, as a factual matter, the “regular forces” lack the capabilities, proximity, or numbers to execute those laws adequately, even though the regular forces are legally authorized to do so. A statutory bar renders the “regular forces” precluded or unauthorized, not factually unable. Let’s assume, for argument’s sake, that the Administration is right that “regular forces” include every federal agency. Suppose Congress precluded a non-military agency from using federal funds to enforce particular laws–say marijuana possession laws or the TikTok ban– for two years. That agency remains able to execute those laws. It has the staff and the expertise. It is merely legally barred from doing so for a period. Whether or not civilian agencies are part of “the regular forces,” Section 12406(3) cannot have been intended by Congress to create an ever-ready federal police for end-runs around statutory bars enacted by Congress.

Turn to “regular forces.” Section 12406 is a statute about the military. Congress placed Section 12406 in Title 10 of the U.S. Code, the Title for the “Armed Forces.” Title 10 in turn defines “armed forces” as “the Army, Navy, Air Force, Marine Corps, Space Force, and Coast Guard.” 10 U.S.C. Section 101(a)(4) and (a)(5). Most important, 10 U.S.C. Sections 10106 and 10112 make every federalized National Guard unit “a component of the Army” or “a component of the Air Force.” If, as the Administration nonetheless argues, “the regular forces” in 12406(3) include the personnel of every non-military agency of the United States, including ICE, then every Administration could regularly make end-runs to evade the statutory bars in Title 10 against the domestic use of the armed forces. That is, under the Administration’s argument, when Title 10 had barred the regular military by statute from executing the laws, federalized National Guard units would be authorized by Section 12406(3) to do exactly what Congress by statute has barred the regular military from doing.

The Administration’s argument cannot be right. 10 U.S.C. Section 12405 provides that when National Guard units are federalized, those units “are subject to the laws and regulations governing the Army or the Air Force.” As the Supreme Court routinely holds, federal law should make sense as a whole, and therefore related statutes–such as 10 U.S.C. Sections 10106, 10112, 12405, and 12406(3)–should be read together to be coherent and consistent with one another. That means federalizing National Guard units is not a vehicle for evading statutory restrictions imposed by Title 10 on all of the armed forces–including federalized National Guard units.

The Administration’s argument has no limits. It would turn the National Guard into a roving back-up federal police whenever the President finds that any agency charged with executing federal laws needs assistance and the regular military is barred from providing that assistance. This is shown by the Administration’s reliance on President Nixon’s use of the National Guard to deliver the mail during a postal strike. So, on that theory, a President could call out the National Guard if there is, in a President’s view, a shortage of investigators of federal securities law violations at the SEC. Or if the President states that the Department of Justice needs help in enforcing federal election statutes. And so on.

Properly construing the “regular forces” in Section 12406(3) as the regular military does not mean that the National Guard can never be federalized to execute some federal laws. Such federalization is proper when two conditions are present. These are (a) the regular military has statutory authorization to execute those laws and (b), in the view of a President, a factual matter of capabilities, proximity, or numbers makes it necessary to use the federalized National Guard to execute federal laws instead of or in addition to the regular military. A President would receive some deference from the courts on the factual assessment of (b)–capabilities, proximity, and numbers. But in Illinois–and also in California and Oregon–the Administration has not even asserted that (a) or (b) is satisfied.

The Supreme Court has ruled over and over again that no federal statute hides an elephant in a mousehole. Using the National Guard as the back-up federal police for all federal agencies is a big elephant. So is federalizing the National Guard to do what the regular military is barred from doing. No court should squeeze either elephant–much less both–into the mousehole that is 10 U.S. Section 12406(3). Judge Perry’s statutory interpretation was right.