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Governors frequently call up the National Guard during natural disasters, but presidents have historically avoided federalizing Guard units without a state’s consent — doing so only five times before 2025.
This year marks a break from that tradition. Sixty years after President Lyndon Johnson sent troops to protect civil-rights marchers in Alabama, President Donald Trump has taken the opposite approach, deploying Guardsmen under Title 10 to shield federal personnel from demonstrations against his policies.
Trump’s deployments in Los Angeles, Portland, and Chicago have been subject to judicial scrutiny. After briefs submitted in Trump v. Illinois yesterday, the Supreme Court is expected to issue a ruling quickly.
At the center of the case is the meaning of the term “regular forces” in federal law. If “regular forces” refers to the U.S. military, Trump may have exceeded his authority, since federal armed forces were not overwhelmed at the time.
What Are ‘Regular Forces’?
Federal law permits a president to deploy the Guard during domestic unrest only when “the President is unable with the regular forces to execute the laws of the United States.”
Historically, both the courts and the Trump administration have interpreted “regular forces” to mean civilian law enforcement.
But Georgetown law professor Marty Lederman in a “friend of the court brief” offers a different reading: He argues that “regular forces” refers to the standing military — the Army, Marines, and other active components.
Under this interpretation, the Guard can be federalized only if the president shows that the regular military cannot enforce the law. This view prompted the Supreme Court to ask for additional briefings.
Should the Court adopt Lederman’s interpretation, the president would first have to attempt to use military forces such as the Army or Marine Corps before calling up the Guard.
That possibility raises concerns about an increased military presence on American streets. While statutes like the Posse Comitatus Act limit domestic military involvement, the boundaries of those laws are narrow and hotly debated.
If the Court rules in Lederman’s favor, Trump’s deployment of the Guard to Broadview, Illinois, would be blocked — potentially setting the stage for a new court fight.
—By Michael Metz
