NYCLA: The President’s Authority to Federalize and Deploy National Guard Members in the U.S.

NYCLA: The President’s Authority to
Federalize and Deploy National Guard Members in the U.S.

In recent months, the Administration has sought to deploy federalized National Guard or regular federal troops in five of our country’s major cities—Los Angeles, Washington, D.C., Memphis, Portland, and Chicago. While the precise conditions and relevant legal issues differ for each city, the attempted deployments share several common themes.

For each city the President used extreme rhetoric to justify the use of federal troops. Portland, for example, was said to be “war ravaged,” Memphis “deeply troubled,” and Washington, D.C. a “crime emergency.” In each case, the President’s characterization appears to have had little basis in the underlying facts.

For four of the affected cities, state and local authorities brought suit to block the military incursion. And in each of those suits, the Executive contended that the President’s decision either is beyond any judicial review or is entitled to so much judicial deference as to be effectively unreviewable.

Federal district courts have entered temporary restraining orders (“TROs”) in three of these lawsuits, holding in each case that the President’s determinations are subject to judicial review and that proper deference to the President does not prevent courts from carefully considering whether the factual and legal grounds for domestic deployment of the National Guard or regular U.S. military (collectively “Federal Troops”) have been established. The appellate courts’ treatment of these TROs has been mixed, but none has held that the President may escape effective judicial review.

1. The Rule of Law Task Force is gravely concerned about such use of Federal Troops

Three conclusions are now clear: First, it is likely that the President will continue to seek to deploy Federal Troops in major U.S. cities. Second, the use of Federal Troops to carry out domestic law enforcement is an enormous threat to our constitutional rights, liberties, and freedoms. Third, the U.S. Supreme Court’s interpretation of the Constitution and relevant statutory provisions will ultimately set the legal parameters for when Federal troops may be deployed for domestic policing against the wishes of state and local authorities.

The Rule of Law Task Force of the New York County Lawyers Association believes it is critical that the Federal troops, including federalized National Guard members under the President’s command, not be allowed to exercise domestic policing powers except in those extremely rare circumstances authorized by applicable federal statutes and our Constitution. We urge every court that considers these questions to recognize that due deference to the Executive never deprives the courts of their right—and duty—under the Constitution to uphold the rule of law and preserve our constitutionally protected civil rights, liberties, and freedoms.

2. There is a strong tradition in the United States of America of resistance to military intrusion into civilian affairs

From the very founding of our nation, there has been “a traditional and strong resistance of Americans to any military intrusion into civilian affairs. That tradition has deep roots in our history.” Laird v. Tatum, 408 U.S. 1, 15 (1972). One of the grievances set forth in our Declaration of Independence was that the King of England “has affected to render the Military independent of and superior to the Civil power.” Because of that first-hand experience with an occupying army, the framers of the Constitution gave Congress, not the President, the power to “provide for calling forth the Militia.” Moreover, the Bill of Rights, particularly the Third, Fourth, and Fifth Amendments, places limits on the military’s domestic operations that not even Congress may override.

Recognizing that the domestic use of the military poses a particular threat to the rights, liberties, and freedoms of individuals, the courts quickly adopted the “unbending rule of law, that the exercise of military power, where the rights of the citizen are concerned, shall never be pushed beyond what the exigency requires.” Raymond v. Thomas, 91 U.S. 712, 716 (1875).

3. The Posse Comitatus Act and 10 U.S.C. § 12406 Codified this American tradition of resistance

In 1878, Congress codified these principles in the Posse Comitatus Act, which barred the President, “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress,” from “willfully us[ing] any part of the [federal military forces] as a posse comitatus or otherwise to execute the laws. . ..”  Significantly, the Act makes clear that, no matter the circumstances, the President has no implicit authority or inherent power to use the federal military, whether members of the regular forces or the federalized Guard, for domestic policing.  

In the 19^th century, what we know of today as the National Guard was a set of state-controlled militias that existed primarily to repel foreign invasions. In the early 20^th century, Congress enacted 10 U.S.C. § 12406 permitting the “calling into federal service” of state National Guard members under narrowly defined circumstances. This statute does not implicitly give the President the authority to deploy such troops for law enforcement purposes; the Posse Comitatus Act only permits express authorizations.

4. Section 12406 permits federalization of the National Guard in only three narrow circumstances

The President invoked 10 U.S.C. Section 12406 when seeking to justify his federalization of the National Guard in the Chicago, Portland and Los Angeles cases. However, the express language of Sec. 12406 provides for federalization of the National Guard in only three narrow circumstances: If (1) “the United States . . . 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.”  

5. Oregon and Illinois Courts have prohibited the Deployment of the federalized National Guard in those States

On October 4, 2025, Judge Karin J. Immergut of the U.S. District Court for the District of Oregon granted local authorities a TRO enjoining the federalization and deployment of Oregon’s National Guard in Portland (the “Oregon Opinion”). The next day, the court issued a second TRO enjoining the deployment of any National Guard members in Oregon. On October 8, the U.S. Court of Appeals for the Ninth Circuit granted an emergency administrative stay of the first TRO, but only with respect to the federalization of the already-federalized Oregon National Guard, thus leaving the TRO against deployment in place. On October 20, by a 2-1 vote, a Ninth Circuit panel stayed the first TRO in its entirety pending appeal (the “Ninth Circuit Panel Opinion”). On October 28, the Ninth Circuit vacated this panel’s October 20 order and ordered that the case be reheard en banc. On October 30, the Ninth Circuit clarified that the panel’s October 8 administrative stay remains in effect. On November 2, Judge Immergut, after a three-day evidentiary trial, issued a preliminary injunction enjoining the deployment of any National Guard members until November 7, by which time the court will issue its final opinion.

On October 9, 2025, Judge April M. Perry of the U.S. District Court for the Northern District of Illinois granted local authorities a TRO enjoining the President and other defendants from ordering the federalization and deployment of the National Guard within Illinois, and on October 10, she issued her written opinion (the “Illinois Opinion”). On October 11, the U.S. Court of Appeals for the Seventh Circuit granted an administrative stay with respect to the federalization of the National Guard, but left in place the TRO blocking the deployment of those troops. On October 16, the Seventh Circuit issued a unanimous opinion extending its partial stay of the Illinois TRO pending appeal (the “Seventh Circuit Opinion”). On October 17, the Executive applied to the U.S. Supreme Court for an administrative stay and a stay pending appeal of the portion of the Illinois TRO that remains in effect. On October 20, the state and local authorities responded to the application. On October 23, pursuant to an agreement between the parties, the District Court extended the TRO  prohibiting the deployment of the National Guard until a final decision is reached on the merits. 

In each of these cases as well as in the Los Angeles case, the Executive has asserted that “regular forces” includes civilian employees of DHS and other federal agencies. In her TRO decision, Judge Perry found that the term “regular forces” in Sec. 12406(3) “was understood at the time of enactment to mean the soldiers and officers regularly enlisted with the Army and Navy,” and did not include such civilian employees.  She held that, because “[d]efendants have made no attempt to rely on the regular forces before resorting to federalization of the National Guard … the statutory predicate contained within Section 12406(3) has not been met on that basis alone.” Illinois Opinion at 35 (using the electronic court filing (ECF) page numbers). In an amicus brief filed with the Supreme Court on October 21, Georgetown Law School Professor Martin S. Lederman persuasively argued that Judge Perry was correct, providing the Court with extensive evidence that Congress intended “regular forces” in Sec 12406 to refer “to the standing, professional military forces, who were commonly known as ‘Regulars,’” and that the term “regular forces” has been consistently used  by Congress, the Supreme Court and the military itself to refer specifically and exclusively to such standing military professionals. Id. at 12.

On October 29, the Supreme Court directed the parties to file supplemental letter briefs addressing “[w]hether the term ‘regular forces’ refers to the regular forces of the United States military, and, if so, how that interpretation affects the operation of 10 U. S. C. §12406(3).” These briefs are to be filed by November 10 with reply briefs due by November 17.

6. The Rule of Law Task Force agrees that the courts may review a President’s decision to federalize the National Guard

The Oregon Opinion (ECF at 17) and the Ninth Circuit Panel Opinion (ECF at 19-20) relied on Newsom v. Trump, 141 F.4th 1032, 1047 (9th Cir. 2025) for the courts’ authority to review a President’s decision to federalize and deploy the National Guard as well as the standard of review. The Illinois Opinion (ECF at 31) and the Seventh Circuit Opinion (ECF at 13) relied on the principles of Loper Bright Enters. v. Raimondo, 603 U.S. 369, 386 (2024) to support the court’s authority to conduct judicial review.

The Rule of Law Task Force agrees that 10 U.S.C. § 12406, the Constitution and well-established principles of statutory construction require the courts to review a President’s decision to federalize the National Guard over the opposition of state and local authorities.

Moreover, the Oregon and Illinois cases exemplify why access to judicial review is crucial to preserve separation of powers and protect our fundamental liberties and civil rights. State and local officials in Oregon and Illinois have asserted that federal military intervention is likely to interfere with the exercise of fundamental protected rights within the state, such as the First Amendment right to protest government policies and actions. Valid concerns that a federal military presence is likely to threaten the right to a free press and intimidate citizens from going to the polls to vote have also been raised. In addition, intervention over the objections of local officials would intrude on the states’ sovereign police power and would interfere with the constitutional balance of power between the federal and state governments in violation of the Tenth Amendment. United States v. Morrison, 529 U.S. 598, 618 (2000). As Illinois argues in its opposition to the Executive’s Supreme Court stay application (at 37):

7. The courts must closely scrutinize the evidence to determine if the Executive’s stated rationale for the federalization and deployment of the National Guard meets statutory requirements and is grounded in actual fact

The Oregon District Court followed the Ninth Circuit’s instruction in Newsom that, in reviewing a President’s federalization of the National Guard under Section 12406, a court must give “a great level of deference to the President’s determination that a predicate condition exists.” Newsom at 1048. However, as the Ninth Circuit held, the court may, within this standard, “review the President’s determination to ensure that it reflects a colorable assessment of the facts and law within a ‘range of honest judgment.’” Id. at 1051 (quoting Sterling v. Constantin, 287 U.S. 378, 399 (1932)). At the same time, again quoting Sterling at 399–400, Newsom held that the President’s “exercise of his authority to maintain peace” must be “conceived in good faith, in the face of the emergency and directly related to the quelling of the disorder or the prevention of its continuance.” Id. (Emphasis in original).   

The Illinois Opinion observed that the government is “‘not required to conclusively link all the pieces in the puzzle before we grant weight to its empirical conclusions.’…  [but] [s]till, Defendants must support their position by pointing the Court to some of the facts upon which it bases its conclusions and offering explanations which paint a substantially reasonable picture justifying the Executive’s position.” Illinois Opinion (ECF at 32) quoting Holder v. Humanitarian L. Project, 561 U.S. 1, 33–35 (2010). (in which the Supreme Court declined to rely on the Executive’s belief that support for that terrorist organization’s non-violent functions constituted material support to a terrorist organization, requiring instead that the Executive to set forth the basis for its belief).

In both the Oregon and Illinois cases, the Executive asserted that “dangers” associated with protests near ICE facilities required federal military intervention. But, applying these standards, both district courts found that these assertions were pretextual and without any reasonable basis in fact.

The Rule of Law Task Force believes the courts must give serious consideration to state and local officials’ claims of unconstitutional overreach by the Executive as was done by the Oregon and Illinois district courts. When such claims are raised, the courts must, as guardians of the Constitution, closely scrutinize the evidence to determine whether the Executive’s stated rationale for the federalization and deployment of the National Guard meets statutory requirements and is grounded in the facts. Conducting judicial review in this area does not demonstrate insufficient deference to the Executive, but rather is a necessary and proper recognition that our Constitution guarantees individual rights, liberties, and freedoms.

8. The Oregon District Court found the Executive’s factual claims to be unsupported by the record and pretextual

Judge Immergut found that the plaintiff Oregon officials provided “substantial evidence that the protests at the Portland ICE facility were not significantly violent or disruptive in the days — or even weeks — leading up to the president’s directive on Sept. 27, 2025.” Oregon Opinion (ECF at19).  

After observing that “‘a great level of . . . deference [to the President] is not equivalent to ignoring the facts on the ground,” Id., at 22, the judge, a Trump appointee, held:

(1) the President’s own statements show that his decision to federalize the Guard was not “conceived in good faith” or “in the face of [an] emergency and directly related to the quelling of the disorder or the prevention of its continuance.” Id. at 22

(2) the President lacked a “colorable basis” to invoke 10 U.S.C. § 12406(2) because the protests in Portland, which were small and had not involved any acts of violence for a considerable period prior to the President’s federalization of the Guard, were not “a rebellion” as that term is used in the statute and did not pose a “danger of a rebellion.” Id., at 25, and

(3) the President lacked a “colorable basis” to invoke Section 12406(3) because the credible evidence, presented largely by the local authorities, did not show that federal agents were unable to execute federal law. Id. at 23.

9. The Illinois District Court also found the Executive’s factual claims to be unsupported by the record and pretextual

Like the Oregon District Court, the Illinois District Court rejected the Executive’s claim that the Chicago protests constituted a “rebellion” under Sec. 12406(2). Illinois Opinion (ECF at 32-34). As the Seventh Circuit observed, “A protest does not become a rebellion merely because the protestors advocate for myriad legal or policy changes, are well organized, call for significant changes to the structure of the U.S. government, use civil disobedience as a form of protest, or exercise their Second Amendment right to carry firearms as the law currently allows. Nor does a protest become a rebellion merely because of sporadic and isolated incidents of unlawful activity or even violence committed by rogue participants in the protest.” Seventh Circuit Opinion (ECF at14).

In addition to holding that “regular forces” in Sec. 12406(3) refers to the standing military, the Illinois District Court found that the “disruptions” caused by protesters – which were “of limited duration and swiftly controlled by authorities” – did not render the Executive “unable” to execute the laws of the United States as required by the statute. Illinois Opinion (ECF at 43).

In its decision, the Illinois District Court noted “a troubling trend of Defendants’ declarants equating protests with riots and a lack of appreciation for the wide spectrum that exists between citizens who are observing, questioning and criticizing their government, and those who are obstructing, assaulting, or doing violence.” Id., at10-11. The court observed, id., at 43, that the disruptions were in fact “of limited duration and swiftly controlled by authorities.” Thus, they did not support the Executive’s claim that “the President is unable with the regular forces to execute the laws of the United States.”  The court also observed, id., at 49-50, “[t]here has been overwhelming evidence presented that the provocative nature of ICE’s enforcement activity has caused a significant increase in protest activity” and that because “National Guard members ‘are trained to effectively destroy enemies in combat scenarios, rather than to de-escalate conflicts . . . allowing them to deploy [as a federalized National Guard] . . .  will only add fuel to the fire that Defendants themselves started.’”

These comments are particularly disturbing in light of the October 9, 2025 TRO entered by another Illinois federal district court based on evidence that DHS agents had improperly used force against protestors, praying clergy and journalists. In addition to enjoining such intimidation and use of force, the TRO required Defendants’ agents to wear visible identification when not conducting undercover operations. On October 17, this same court entered a revised TRO adding a requirement that federal agents who are conducting immigration enforcement operations activate body cameras.

10. Appellate courts may only overturn a District Court’s factual findings on a TRO if those findings were clearly erroneous, which was not the case for the Illinois or Oregon Opinions

In both the Oregon and Illinois cases, the district courts were presented with substantial evidentiary records on which they based detailed findings that supported their respective conclusions that the Executive’s assertions about the need for federal military intervention were pretextual and without any reasonable basis in fact. To overturn those factual findings, an appellate court would have to conclude under Rules 52(a)(2) and 52(a)(6), Fed. R. Civ. P., that the district court’s factual findings were clearly erroneous. We question whether, on the records in either of these cases, an appellate court could properly reach that conclusion. The dissent, unlike the majority, in the Ninth Circuit Panel Opinion explicitly applied this principle, and would not have stayed the Oregon court TRO.

11. The Rule of Law Task Force agrees that the balance of harms weighs in favor of continuing the stay of the deployment of federalized National Guard in both Illinois and Oregon pending appeal.

The Rule of Law Task Force agrees with the Seventh Circuit Opinion analysis (ECF at 16-17) that on the record in these cases, the balance of harms weighs in favor of continuing the stay of the deployment of federalized National Guard pending appeal: “[T]he federal government has been able to protect federal property and personnel without the National Guard’s help. By contrast, the administration’s likely violation of Illinois’s Tenth Amendment rights by deploying Guard troops in the state over the state’s objection ‘constitutes proof of an irreparable harm.’ Preston v. Thompson, 589 F.2d 300, 303 n.3 (7^th Cir. 1978). And the deployment of National Guard members from Texas—an incursion on Illinois’s sovereignty—makes the constitutional injury especially significant.” This same analysis applies equally to the situation in Oregon.

12. The courts should not be criticized for fulfilling their obligation to protect our fundamental Constitutional rights

Those who criticize the courts for examining the evidence in these cases, instead of rubber stamping the Executive’s assertions, ignore the duty of our courts to protect us from unwarranted infringement of the fundamental rights guaranteed to us by our Constitution, including the right to protest government policies and actions, and the right to a free press. We urge everyone committed to the preservation of those rights and the Rule of Law to join us in calling on the courts to scrutinize carefully the factual and legal basis for any claim that the President has the authority to federalize and deploy the National Guard within the United States.

This statement has been issued by the Rule of Law Task Force and approved by NYCLA’s President.  It has not been reviewed by NYCLA’s full Board of Directors and does not necessarily represent its views.

About the New York County Lawyers Association
The New York County Lawyers Association (www.nycla.org) was founded in 1908 as one of the first major bar associations in the country that admitted members without regard to race, ethnicity, religion, or gender. Since its inception, it has pioneered some of the most far-reaching and tangible reforms in American jurisprudence and has continuously played an active role in legal developments and public policy.

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