SRLI Files Supreme Court Brief In National Guard Case

Charter Member Richard Bernstein filed an amicus brief on behalf of the Society for the Rule of Law with the Supreme Court arguing that the “principles of textualism, statutory context, and in pari materia confirm that ‘the regular forces’ refer only to the regular military” and thus the Trump administration has exceeded its authority in Illinois.

“The question is whether, outside those exceptions, does 10 U.S.C. § 12406(3) authorize federalizing National Guard units to do exactly what Congress by statute has forbidden using the regular military to. It does not.”

The brief’s central claim is that the phrase “the regular forces” in 10 U.S.C. § 12406(3) refers to the regular military forces—such as the Army and Air Force—not to civilian federal law enforcement agencies. The government’s contrary interpretation, SRLI contends, would create an unconstitutional loophole by allowing the President to use the National Guard to bypass long-standing statutory limits such as the Posse Comitatus Act, which restricts the military’s role in domestic law enforcement. The Institute frames its argument as a defense of constitutional structure and the separation of powers, warning that allowing presidents to use federalized Guard units in place of civilian agencies would erode congressional authority and the rule of law.

Bernstein further explains how § 12406(3) should work in practice: the President may federalize the National Guard only when (1) the regular military has lawful authority to execute a given federal law, and (2) the regular forces are factually unable—not legally forbidden—to do so. For example, this could include situations like enforcing school desegregation orders where the military is authorized but lacks sufficient manpower or local legitimacy. The brief stresses that “forbidden by statute is not ‘unable’,” so statutory prohibitions cannot justify Guard deployment. Reading the provisions of Title 10 and Title 18 together, SRLI concludes that any interpretation permitting the Guard to act where the Army or Air Force cannot would contradict both text and history.

In sum, SRLI urges the Court to deny the stay and affirm the lower court’s decision, thereby preserving Congress’s limits on domestic military use and preventing the executive from converting the National Guard into a “roving domestic army.”

Read the full amicus brief here.