How extensive is the Presidentโs power to deploy state units of the National Guard for federal law enforcement?
On June 19, the United States Court of Appeals for the Ninth Circuit ruled inย Newsom v. Trumpย that the President could deploy the Guard to protect federal property in Los Angeles. On October 4, a federal district judge ruled inย Oregon v. Trumpย that the President could not use the Oregon National Guard for the same purpose in Portland.
The term โNational Guardโ is somewhat misleading. There is a different national guard in every state. Each is governed largely by state law, and the governor is its commander-in-chief. Historically, a stateโs national guard was referred to as its โmilitiaโ โ and the Constitution uses that term.
From the point of view of a Trump administration lawyer, both theย Newsomย andย Oregonย cases are questionable. Even though theย Newsomย court ultimately ruled for the President, it failed to abide by a longstanding Supreme Court precedent holding that the chief executive alone has discretion to determine the scope of his deployment authority. On different facts, theย Oregonย court also disregarded this precedent to rule against the administration.
Both cases support the view that there is a judicial double standard โ a forgiving one for other chief executives, and a much more demanding one for President Trump.
Yet if we follow the Constitution, it may well be that the outcomes (although not all the reasoning) of both cases are correct. To understand why, we must review the Constitutionโs militia rules and examine why the federal government is out of compliance with them.
The Founding-Era Background
The Declaration of Independence created not one new nation butย thirteenย โfree and independent states.โ Beginning in 1781, the Articles of Confederation came into effect. The Articles created not a government, but aย treaty organization, somewhat akin to NATO. It was not until the people of the states ratified the Constitution that the United States became a single nation โ and even then, three states (North Carolina, Rhode Island, and Vermont) remained independent for a time. There is, to be sure, aย common claimย that federal sovereignty limited state sovereignty even before the Constitution was ratified. But history and international law show that the claim is clearlyย erroneous.
As sovereign nations, the states had full power to wage bothย defensive and offensive war. Under the Articles, the states reserved power to conduct defensive war and ceded to the Confederation Congress both defensive power and near-exclusive authority over offensive operations. The Constitution kept this scheme mostly intact, although it actually recognizedย somewhat moreย state defensive war power than did the Articles.
Throughout this period, each state maintained a body of part-time soldiers called itsย militia. Militiamen were used for state defense only. For offensive and multi-state defensive operations, the Confederation Congress, and later the federal government, raised regular armies.
During this period, popular attachment to state militias was very strong. The founding generation saw state militias as vital to defense. Moreover, as Federalist No. 45 demonstrates, they considered state militias important checks on the central government and counterbalances to a federal standing army.
The Constitutionโs Language
Yet the constitution-makers also recognized that state militias could be a useful federal tool for fighting defensive war and enforcing federal law. Accordingly, the Constitutionโs Calling Forth Clause (Article I, Section 8, Clause 15) granted to Congress the power
โTo provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.โ
Additionally, the Militia Organization Clause (Article I, Section 8, Clause 16) granted Congress authority
โTo provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.โ
Theย Newsomย court erred when it stated that โCongress has delegated some of its power to call forth the militia to the President.โ In fact, the Constitution did not grant Congress authority to call forth the militia, but to define when the President, in the execution of his own duties, could call forth the militia. (In eighteenth-century English, the phrase โprovide forโย looked toward the future, as in โmaking provision for.โ) Of course, the congressional definition of the Presidentโs calling-forth power cannot exceed constitutional limits.
After the President calls forth state militia units, he serves as their commanding officer while they remain in federal service (Article II, Section 2, Clause 1).
In the exercise of its militia powers, Congress may authorize the President to call forth the militia in some constitutionally-authorized cases, but not in others. As detailed below, this is exactly what Congress has done.
Constitutional Limitations
In a document granting enumerated powers, there is a strong presumption that powers not enumerated are not granted. The Founders drafted and ratified the Constitution with theย explicit understandingย that this presumption would apply. Thus, the Militia Organization Clause tells us that Congress may delineate the rules whereby states train the militia, but it leaves the training itself to the states. The Calling Forth Clause authorizes federal use of the militia to enforce federal law and wage defensive war (โsuppress Insurrections and repel Invasionsโ) โ but to those purposes alone.
These limits were emphasized in the debates over the adoption of the Constitution. The Virginia ratifying convention provided the most thorough discussion of this subject.
Participants on both sides emphasized the defensive role of the militia, much as Alexander Hamilton inย Federalist No. 29ย did when he referred to the militia as โthe most natural defense of a free country.โ However, Antifederalists worried that the Constitution might give the new government too much control over the militia. With too much control, they said, federal officials might deploy state units in โdistant and hopeless expeditions.โ Or they might under-supply the militia, thereby weakening state defense against invasion, a standing federal army, or federal overreaching.
The Constitutionโs supporters responded, and their responses were as authoritative as one could wish. Their spokesmen included (1) James Madison, (2) Governor Edmund Randolph, (3) the future Chief Justice John Marshall, and (4)ย George Nicholas, a talented friend of Madisonโs who had studied underย George Wytheย and later briefly became a law professor himself. Here are some examples of what they said:
*ย ย ย ย ย ย ย Madison:
โThe authority of training the militia, and appointing the officers, is reserved to the states. Congress ought to have the power to establish a uniform discipline throughout the states, and to provide for the execution of the laws, suppress insurrections, and repel invasions: these are the only cases wherein they can interfere with the militia . . . .โ
*ย ย ย ย ย ย ย Nicholas:
โThese powers only amount to thisโthat they can only call them forth in these three cases, and that they can only govern such part of them as may be in the actual service of the United States . . . There is a great difference between having the power in three cases, and in all cases. They cannot call them forth for any other purpose than to execute the laws, suppress insurrections, and repel invasions.โ
* ย ย ย ย ย ย Randolph:
โDoes [the Constitution] provide that the laws are to be enforced by military coercion in all cases? No, sir. All that we are to infer is, that when the civil power is not sufficient, the militia must be drawn out . . . They are only to be called out in three cases.โ
* ย ย ย ย ย ย Marshall:
For Continental purposes Congress may call forth the militia, โ as to suppress insurrections and repel invasions. But the power given to the states by the people is not taken away; for the Constitution does not say so . . . When invaded, [the states] can engage in war, as also when in imminent danger. This clearly proves that the states can use the militia when they find it necessary.
The Breakdown in Constitutional Limits
Inย Houston v. Mooreย (1820), the Supreme Court acknowledged the Constitutionโs state-federal division of authority over the militia. Since that decision, though, the federal government has extended its power over state militias, with the Supreme Court meekly deferring to federal actions. Thus, inย Martin v. Mottย (1827), a militiaman claimed a presidential order did not comply with the โcalling forthโ grounds specified in the Militia Act of 1795. But the Supreme Court ruled that โthe authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons.โ
In 1933, Congress enacted a โdual enlistmentโ system. Under this system, any person enlisting in a state National Guard automatically enlists in the Army Reserve. Because the federal government may call up reservists at any time, it effectively may nationalize guardsmen at any time.
The Supreme Court should have voided this scheme as an end run around the limits of the Calling Forth and Militia Organization Clauses. Instead, it effectively endorsed the dual enlistment systemย inย Perpich v. Department of Defenseย (1990). The court claimed this was a proper exercise of the Constitutionโs power to โraise and support Armiesโ (Article I, Section 8, Clause 12). The bench also held that by the โplain readingโ of the Constitution, federal authority to prescribe a training regimen for the states included the power to train guardsmen itself.
Also illustrative of the courtโs dismissal of state, as opposed to federal, military interests isย Torres v. Tex. Dept. of Public Safetyย (2022). There, the justices relied onย Perpichย to uphold congressional authorization of private damage suits against non-consenting states:
โBy ratifying [the Constitution] the States well knew that their sovereignty would give way to national policy to build and maintain the Armed Forces. Consistent with this structural understanding, Congress has long legislated regarding military forces at the expense of state sovereignty.โ
Constitutional Problems
Significantly, none of these Supreme Court decisions acknowledged the representations made to the ratifying public (and to the states) about reserved state war powers or the limits on the federal militia power.
These decisions also contained other flaws. Disallowing an individual militiaman from contesting a military order (as inย Martin) might be useful as a rule ofย prudential standing. But it is difficult to understand whyย no oneย should have standing to contest a presidential action.
Theย Perpichย ruling was worse. The court claimed to reach its conclusions based on the โplain readingโ of the text. But the conclusion that the federal power to prescribe the mode of training includes the training itself directlyย contradictedย the text (โreserving to the States respectively . . . the Authority of training the Militiaโ). That conclusion also contradicted specific Federalist representations made during the ratification debates.
Nor didย Perpichย explain how training in Central America was relevant to the militiaโs quintessentially defensive role. And the Courtโs use of the Armies Clause to convert two other constitutional provisions into surplusage violated the rule that one interprets documents in ways that avoid surplusage.
Most fundamentally, all these cases seem grounded in the notion that federal military powers are exclusive, and that the states have none worth considering. This is far from the actual constitutional settlement, as both the Constitution itself and the surrounding history tell us.
Effects
As suggested above, these cases may well have prompted President Trumpโs legal counselors to advise him that the courts allow federal officials to do pretty much whatever they want with state militias. United States Code, title 10, ยง 12406 permits the President to call forth a stateโs national guard
โWheneverโ
(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
(3) the President is unable with the regular forces to execute the laws of the United States . . .โ
The third ground in the statute grants the President less power than the Constitution authorizes. But underย Martin v. Mott, no one should have been able to question President Trumpโs decision that existing federal guards were inadequate for protecting federal facilities. Under the other cases just discussed, the courts have deferred obsequiously to federal decisions in this realm.
But that was before Donald J. Trump became President. Both theย Newsomย and theย Oregonย courts applied a different standard to him. Theย Newsomย court admitted thatย Martinย was settled Supreme Court precedent. It admitted that Congress had accepted that precedent. It admitted that legal experts agreed thatย Martinย was established law. Yet it opined:
All that said,ย Martinย does not compel us to accept the federal governmentโs position that the President could federalize the National Guard based on no evidence whatsoever, and that courts would be unable to review a decision that was obviously absurd or made in bad faith.
The court offered no real explanation of whyย Martinย contained that exception or why the Presidentโs determination must be a โcolorableโ one.
Althoughย Newsomย ultimately held that the Presidentโs decision to deploy national guardsmen in Los Angeles was โcolorable,โ on different facts, theย Oregon v. Trumpย judge ruled that the Presidentโs decision to deploy guardsmen to Portland came too long after the threat had passed to be โcolorable.โ
Again, both rulings suggest that the judiciary applies stricter standards to President Trump than to other chief executives.
Recommendation
This area of the law should be overhauled to better conform to the Constitution. If either of these cases arrives at the Supreme Court, the justices should begin the job.
First, they should clarify that federal use of state militia units is limited to the three cases enumerated in the Constitution, and that neither the Armies Clause nor the โdual enlistmentโ system can be used to circumvent those limits.
Second, the court should uphold the validity of 10 U.S.C. ยง 12406 as a valid exercise of the Calling Forth Clause.
Third, it should clarify that, because there is nothing in the Constitution to suggest that presidential militia decisions are non-justiciable, the holding inย Martinย should be limited to its facts. That is, the ruling should apply to militiamen, but not to responsible state functionaries.
Fourth, because military and law enforcement decisions are primarily entrusted to the executive branch, the part of the non-justiciability rule now applying to responsible state officials should be replaced with one merely granting deference to the President. For that purpose, perhaps, the โcolorableโ formula adopted inย Newsomย andย Oregonย might be an appropriate substitute.
But that standard should apply to all chief executives, not just President Trump.
Professor Natelson acknowledges the assistance of Liam McCollum (Univ. of Mont. Law, โ26) in reviewing this essay.
A version of this essayย first appearedย inย Civitas Outlook on October 20, 2025 – and this version is republished here with permission from the author.
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