Category: Military

Supreme Court Refuses to Lift Bar on President Using National Guard in Illinois

by · Dec 23, 2025 3:27 pm

Today the U.S. Supreme Court issued a brief decision in Trump v. Illinois, No. 25A443. The Court held that 10 U.S.C. § 12406(3) does not authorize the President to federalize the Illinois National Guard for the purpose of protecting federal personnel and property in Illinois.

I noted in this post some problems with that particular statute, including its requirement that orders be issued through the state governor. The Supreme Court’s decision focuses on a different aspect of the statute, the condition that “the President is unable with the regular forces to execute the laws of the United States.” Today’s opinion holds that the reference to “regular forces” limits the statute to laws that the military can enforce, and those are few and far between given the Posse Comitatus Act.

My previous post noted that using military forces to enforce laws in recalcitrant states is better done under one of the surviving remnants of the Ku Klux Klan Act of 1871.

As is common in these summary cases, the opinion of the court is brief and not designated as authored by any justice. Continue reading . . .

Federalist Society Convention — National Guard in Cities

by · Nov 3, 2025 11:14 am

The Federalist Society’s National Lawyers Convention is this week, Thursday through Saturday. It is being held at the Washington Hilton, having outgrown its traditional venue at the Mayflower Hotel. Many of the panels will be live-streamed for free.

Update 11/21: The panel recordings were offline for a time while they cleaned up the audio. The are accessible once again.

The panel for the Criminal Law Practice Group is “Crime, Cities, and the Guard: The Legal and Policy Dimensions of Domestic Troop Deployment.” Cully Stimson of the Heritage Foundation is on the panel. Fifth Circuit Judge Edith Jones is the moderator. The scheduled time is 3:45-5:00 EST pm Thursday, 12:45-2:00 pm PST.

Continue reading . . .

Ninth Circuit Stays Injunction Against Cal. Guard Federalization

by · Jun 20, 2025 7:31 am

In previous posts, I discussed California Governor Gavin Newsom’s suit against President Trump’s federalization of the National Guard to deal with the Los Angeles riots, the district court’s temporary restraining order, and the court of appeals’s immediate short-term administrative stay.

Yesterday, despite being a federal holiday, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit stayed the district court’s TRO for the duration of the appeal. In circumstances such as this, the stay pending appeal may be the whole ball game. If order is restored and the federalization rescinded before the actual decision of the appeal, the appeal may very well be dismissed as moot.

The panel was not too worried about the point that I considered the weakest element of the President’s case, the requirement of 10 U.S.C. § 12406 that the orders be issued through the state governor.

Continue reading . . .

Pelosi Wrongly Calls Use of National Guard “Contra-Constitutional”

by · Jun 11, 2025 3:23 pm

Congresswoman and former Speaker Nancy Pelosi said recently that President Trump “in a contra-constitutional way … has sent the National Guard into California. Something is very wrong with this picture.” What is wrong is Ms. Pelosi’s understanding of the Constitution.

It is regrettably common for people to run around saying things are unconstitutional simply because they disagree with them strongly. The former Speaker should know better.

The National Guard is part of the militia, as that term is used in the Constitution. Article I, section 8, authorizes Congress to “to provide for calling forth the Militia to execute the Laws of the Union,” and Congress has done so in 10 U.S.C. §§ 252 and 253. The Constitution further provides, in Article II, section 2, that the “President shall be Commander in Chief . . . of the Militia of the several States, when called into the actual Service of the United States.” Use of the militia to enforce federal law goes back to President Washington. Presidents Eisenhower and Kennedy used the predecessors of the code sections cited above over the objections of state governors. I will have a long post on this soon.

Continue reading . . .

Statutes of Limitations and Rape in the Military

by · Dec 10, 2020 10:34 am

The U.S. Supreme Court today upheld three court-martial convictions for rape, interpreting the Uniform Code of Military Justice (UCMJ) statute of limitations in effect at the time as imposing no limit on rape prosecutions in the military. In the process, the Court found it unnecessary to decide whether the Eighth Amendment limitation of Coker v. Georgia (1977), forbidding the death penalty for rape, applies to the military. Continue reading . . .

The Eighth Amendment and Statutes of Limitations

by · Oct 13, 2020 3:46 pm

What do statutes of limitations and the constitutional ban on “cruel and unusual punishments” have to do with each other? The logical answer is “nothing.” But the law follows strange paths, and the two issues crossed in today’s Supreme Court argument on the statute of limitations for rape in the military justice system. Continue reading . . .