NATIONAL GUARD TROOPS IN CITIES: Legal Or Abuse Of Federal Power?

Alright, let’s get this on the record. The law isn't a game. It's not a collection of dusty books and arcane phrases meant to be debated in rooms most people will never enter. It's a live thing. It breathes in the back alleys of Hell's Kitchen and in the marbled halls of the Supreme Court. It’s the framework that’s supposed to protect the powerless from the powerful. But that framework is only as strong as the people willing to defend it. Right now, I can hear the cracks forming in the foundation.

Father playfully pretends to put his toddler on "house arrest," debunking the rumor of ICE involvement.

This document, this analysis, is about those cracks. It’s about a raw and cynical power grab dressed up in the language of national security. When a President decides he can seize a state's own citizen-soldiers and turn them into a federal force against the will of the people who live there, he’s not just bending a rule. He’s trying to break the whole damn system. The events of 2025 in Oregon and Illinois aren't a political dispute; they’re a five-alarm fire for the Republic. And the courts, our supposed last line of defense, are split on whether to grab an extinguisher or just watch it burn.

Here, we will dissect this crisis. We will strip away the political noise and the legal jargon to expose the raw machinery of power at work. We will trace the line of authority from the ink-stained hands of the Founders to the contested streets of Portland and Chicago. We’ll put the key precedents under a microscope and expose the dangerous ambiguity of the so-called "colorable assessment" standard, a legal fog thick enough to hide an army in. We will walk through the conflicting court rulings, listening for the sound of judicial courage in one and the deafening silence of deference in the other.

Finally, we will talk about the cost. Not in dollars, but in the trust between a government and its people, in the integrity of our courts, and in the soul of a military that is supposed to be apolitical. This isn't just a legal review. It's a damage report. And it's a forecast for the battle that is now inevitably heading to the Supreme Court of the United States, a battle that will define the limits of power in this country for a generation to come.

I. The Architecture of Power: Statutes, Clauses, and Chains on Command

You don't have to be a constitutional scholar to understand one simple truth: the men who founded this country were terrified of standing armies. They had just thrown off a king, and the scent of his soldiers’ boot leather was still fresh in their minds. They knew that an army deployed against its own people is the oldest tool of tyranny. That fear is baked into the very DNA of our Constitution. The President’s power to use military force on American soil isn't a birthright of the office; it's a power granted on a short leash, with a long list of conditions written by Congress. To understand how that leash has been stretched to the breaking point, you have to look at the chain, link by link.

A. The Founders’ Fear: The Militia Clauses and the Acts of 1792 & 1795

The starting point is the Constitution’s Militia Clauses. These aren't just historical footnotes; they are the bedrock of a fundamental compromise. Article I, Section 8, Clause 15 gives Congress, not the President, the power to call up the state militias for three, and only three, reasons: to "execute the Laws of the Union, suppress Insurrections and repel Invasions." The next clause gives Congress the power to organize and arm them, but pointedly reserves the appointment of officers and the authority for training to the states themselves.

This wasn't an accident. This was the Founders building a firewall. The state militia was the default defense force, controlled by the states. The federal government could borrow it, but only for the most severe national emergencies, and only under rules set by the people’s representatives in Congress.

Congress first exercised this power with the Militia Acts of 1792 and 1795. These laws delegated the "calling forth" power to the President but kept him inside the constitutional cage. He could act to repel an invasion, suppress an insurrection, or when the law was being blocked by forces "too powerful to be suppressed by the ordinary course of judicial proceedings." This established the foundational principle that holds true to this day: the President acts as an agent of Congress. His authority is not inherent; it is delegated and strictly limited. He doesn’t get to invent new reasons to call out the troops.

B. A Force with Two Masters: The Militia Act of 1903 (The "Dick Act")

For a century, this system of state-run militias worked, more or less. But the Spanish-American War showed the cracks. The militias were poorly equipped and trained to different standards. So, in 1903, Congress passed the Dick Act, which created the modern National Guard.

This is where things get complicated. The Dick Act professionalized the Guard by providing federal money for training and equipment. The trade-off was that the Guard had to meet U.S. Army standards. In doing so, it created a force with a split personality. The Guard became a state military force, commanded by a governor in peacetime (Title 32 status), and simultaneously, a reserve component of the U.S. Army or Air Force, subject to being called into federal service by the President (Title 10 status). Every Guard member effectively takes two oaths and serves two commanders-in-chief. This dual-enlistment structure is the precise constitutional pressure point that the current administration is exploiting. It creates a seam, a vulnerability, in the chain of command, a weakness that a cynical executive can use to turn a state’s own shield against itself.

C. The Line in the Sand: The Posse Comitatus Act of 1878

At the very heart of American liberty is a simple, powerful idea: soldiers don't police our streets. That’s a job for civilian law enforcement. This principle isn't just a quaint tradition; it's a federal crime, codified in the Posse Comitatus Act of 1878.

You have to understand the stench of the history this law grew out of. It was passed at the bitter end of Reconstruction. The U.S. Army had been used to occupy the former Confederacy, and its troops were used to police polling places and enforce federal law. Regardless of the intentions, the result was the military acting as a domestic police force. The Act was passed to stop it, period. It makes it a felony to use the Army or Air Force "as a posse comitatus or otherwise to execute the laws."

This is not a suggestion. It is a prohibition, written in the shadow of a deeply troubled era of our history. And it's a prohibition that directly applies to the National Guard the moment a President federalizes them under Title 10. Once they are on federal orders, they are, for all legal purposes, the U.S. Army. The only way around this bedrock prohibition is if their actions are "expressly authorized by the Constitution or Act of Congress." This single exception is everything. It means that without a valid, lawful order under a specific statute like the Insurrection Act, using federalized Guard troops to perform law enforcement functions, arresting people, searching homes, controlling crowds, is a criminal act. The President doesn't have the discretion to ignore it.

D. The Modern Weapon: 10 U.S.C. § 12406

This brings us to the statute at the heart of the 2025 crisis: 10 U.S.C. § 12406. This is the modern descendant of the old Militia Acts, and it lays out the three conditions under which the President can federalize the Guard:

(1) The United States is invaded or in danger of invasion;

(2) There is a rebellion or danger of a rebellion against the authority of the U.S. government; or

(3) The President is unable with the regular forces to execute the laws of the United States.

The administration’s entire legal justification hangs on that third thread. There was no foreign invasion of Portland. There was no rebellion in Chicago aiming to overthrow the government. The claim is that protests against federal immigration policy made it impossible for the federal government to enforce its laws. The entire constitutional battle boils down to the meaning of that one phrase: "unable to execute the laws."

This is where the danger lies. The old triggers, "invasion," "insurrection," are high bars. They describe objective, physical realities. They are loud, obvious, and hard to fake. But this third trigger is different. It’s subjective. It’s a judgment call. The statutory language creates what lawyers call a "discretionary gap." It's a quiet space in the law, a murmur of ambiguity. And it's in that quiet space that a President, hungry for power and eager to make a political point, can claim that protests he doesn’t like have made him "unable" to enforce the law. This is the weaponization of ambiguity, and it is a direct threat to the constitutional order.

II. The Judicial Leash: Two Cases, One Constitutional Collision

The statutes and the Constitution draw the boundaries, but it’s the courts that are supposed to guard them. For nearly a century, two titanic Supreme Court precedents have defined the judiciary's role in overseeing the domestic use of military force. They pull in opposite directions, creating a deep and dangerous tension in the law. One empowers the courts to act as a check on executive overreach, while the other affirms the President's absolute power once the troops are called up. The 2025 crisis is the point where these two tectonic plates of jurisprudence finally collide.

A. The Bedrock Check: Sterling v. Constantin (1932)

The story starts in the oil fields of East Texas during the Great Depression. Facing a price collapse from overproduction, Governor Ross Sterling declared martial law and used the Texas National Guard to shut down the oil wells by force. When the well operators sued, the Governor made an argument we hear echoed today: that his emergency declaration was an act of executive discretion, completely immune from the prying eyes of the courts.

In a landmark decision, the Supreme Court, led by the formidable Chief Justice Charles Evans Hughes, shut him down. Hard. The Court in Sterling v. Constantin established the foundational principle of judicial review over executive emergency actions. Hughes wrote that just because the executive has discretion doesn't mean his actions are "conclusively supported by mere executive fiat." The Court looked behind the Governor’s proclamation and found no real "insurrection or riot" that would justify seizing private property with military force. They called his bluff.

The principle of Sterling is the judiciary's backbone. It says that courts not only can, but must, examine the factual basis of an emergency declaration. An executive’s say-so is not enough. The facts on the ground have to justify the extreme action taken. This case is the legal and moral ancestor to the kind of hard-nosed, fact-based review we saw from the district court in Oregon. It’s a reminder that in America, no one is above the law, not even a governor or a president claiming an emergency.

B. The Supremacy of Command: Perpich v. Department of Defense (1990)

Fast forward nearly sixty years. The question before the Supreme Court in Perpich v. Department of Defense was about the Guard's dual identity. Minnesota Governor Rudy Perpich challenged a federal law that prevented him from blocking his Guard units from being sent overseas for training missions. He argued it violated the state's constitutional authority to train its own militia.

The Supreme Court disagreed, unanimously. The Court held that the dual-enlistment system created back in 1916 was perfectly constitutional. When a person joins the state National Guard, they are also joining the National Guard of the United States, a federal reserve force. Therefore, when the President issues a lawful order under his Title 10 authority, those Guard members become federal soldiers. Their status as state militia members is suspended, and the President's command is absolute. A governor has no legal authority to stop them.

Perpich clarifies that once the Guard is lawfully federalized, the President is in complete control. This makes perfect sense from a military perspective, you can’t have soldiers with two different commanders shouting conflicting orders. But it also dramatically raises the stakes of the first question: was the call-up lawful to begin with?

Here is the collision. Sterling gives the courts the power to review the factual basis of the order. Perpich gives the President absolute control once the order is deemed lawful. The entire legal battle of 2025 is being fought in the gap between these two principles. The administration wants the courts to focus only on the power of Perpich, creating a standard of review so deferential it makes the duty of Sterling meaningless. The states argue that the absolute power of Perpich can only be unlocked after a court performs its duty under Sterling and confirms the order is based on fact, not fiction. Into this chasm, the Ninth Circuit created a new, dangerously unstable standard.

III. The Judicial Shrug: The "Colorable Assessment" Standard

Before the crisis exploded in Oregon and Illinois, the legal fuse was lit in California. The Ninth Circuit Court of Appeals, faced with a similar deployment, tried to find a middle ground. Instead, it created a legal Rorschach test, a standard so vague and undefined that it gave two different federal judges license to reach opposite conclusions on nearly identical facts. This is the story of the "colorable assessment" standard, a judicial compromise that satisfied no one and resolved nothing.

A. The Prelude in California: Newsom v. Trump

In June 2025, after protests against ICE operations in Los Angeles, the President invoked 10 U.S.C. § 12406 and federalized 2,000 members of the California National Guard against the fierce objections of Governor Newsom. California sued, arguing the President’s action was ultra vires, a legal term that means "beyond the scope of his powers." A federal district judge agreed, granting a temporary restraining order (TRO) after finding the facts on the ground didn’t justify such an extreme measure.

The administration immediately appealed to the Ninth Circuit. In its ruling, the appellate court tried to split the baby. It rejected the government's argument that the President's decision was a "political question" that courts couldn't touch. But it also said that courts must give the President's determination "a great level of deference."

To balance these opposing ideas, the court invented a new standard out of whole cloth. It held that a court could review the President’s decision, but only "to ensure that it reflects a colorable assessment of the facts and law within a 'range of honest judgment.'"

Let me translate that from legalese. "Colorable," in a courtroom, has a cynical meaning. It doesn't mean true or accurate. It means "superficially plausible," or "not so baseless that it’s sanctionable." It is an appallingly low bar. By creating this standard, the Ninth Circuit panel looked at reports of protesters throwing objects and damaging property and concluded that this was a "colorable basis" for the President to decide he was "unable" to enforce the laws. They stayed the lower court's injunction and let the deployment happen.

The "colorable assessment" standard is a judicial shrug. It’s an attempt to look like you’re doing your job as a check on power without actually doing it. It’s a legal fog that allows a judge to substitute the President's judgment for their own review of the facts. The standard is inherently unstable because it fails to define how much evidence is needed or how much deference is too much. It resolved the California case for the moment, but in doing so, it set the stage for the constitutional chaos that immediately followed. It was an invitation for a fight, and that fight came just a few months later.

IV. A Tale of Two Courthouses: Oregon's Rebuke and Illinois's Deference

The ink was barely dry on the Ninth Circuit’s decision in Newsom when the President used his newfound "colorable assessment" authority again, this time targeting Oregon and Illinois. The resulting lawsuits landed in two different federal courthouses before two different judges. They looked at the same law, the same standard, and similar sets of facts, and came to completely opposite conclusions. This judicial split isn't just an academic curiosity; it’s a flashing red warning light that the rule of law has become dangerously subjective.

A. Portland's Stand: Judge Immergut Hears the Facts in Oregon v. Trump

In Portland, the administration’s justification for deploying 200 Oregon National Guard members was a narrative of chaos, with the President calling the city "war-ravaged." The state and city filed suit, arguing the President’s order was a farce, a political act wrapped in a thin veneer of legality.

The case landed before U.S. District Judge Karin J. Immergut. In a stunning and forceful opinion, she granted the TRO and halted the deployment. Her ruling was a masterclass in judicial responsibility. She took the Ninth Circuit's "colorable assessment" standard and gave it teeth. She acknowledged the need for deference, but immediately stated that deference "is not equivalent to ignoring the facts on the ground."

And then she did what a judge is supposed to do: she looked at the evidence. She didn't just take the administration's word for it. She found their claims to be "simply untethered to the facts." She noted the protests were small and sporadic, that sustained violence was non-existent, and that there was zero proof federal authorities were actually "unable" to do their jobs. Her conclusion was a direct rebuke to the administration's cynical narrative. She ruled that the state was likely to succeed in proving the President’s order was illegal and that allowing the deployment would cause irreparable harm to state sovereignty. When the administration tried a backdoor maneuver to bring in federalized troops from other states, she shut that down too, calling it a "direct contravention" of her order.

I can almost hear the sound of a ruling like that. It’s not loud. It’s a clean, sharp, decisive sound. It's the sound of a judge doing her job without fear or favor. It's the sound of the law working.

B. Chicago's Wait: Judge Perry's Deference in Illinois v. Trump

At the same time, a similar drama was unfolding in Chicago. The administration announced its plan to deploy hundreds of Guard members from Illinois and Texas to the city, again citing protests and the need to protect federal property. The State of Illinois and the City of Chicago sued on almost identical grounds as Oregon, arguing the deployment was an unconstitutional, politically motivated abuse of power.

The outcome could not have been more different. U.S. District Judge April Perry in the Northern District of Illinois denied the request for an immediate TRO. By refusing to halt the deployment right away, she signaled a far more deferential approach. Her action implies a reading of the "colorable assessment" standard that leans heavily toward the executive. It reflects a judicial philosophy that is deeply reluctant to interfere with the Commander-in-Chief's assessment of a threat, even at the cost of allowing a potentially illegal action to proceed.

This isn’t a final ruling on the merits. But at the TRO stage, time is everything. A refusal to act is itself an action. It allows the troops to move in. It allows the harm to state sovereignty to occur. It creates a reality on the ground that is hard to undo. This ruling, in stark contrast to Judge Immergut's, created a de facto circuit split. The law of the land was now different in Portland than it was in Chicago. The President’s power waxed or waned depending on which judge heard the case. That is not the rule of law. That is judicial roulette.

V. The Cost of Command: Civil, Judicial, and Moral Consequences

When a President deploys troops on American streets against the will of a governor, the damage isn't just theoretical. It’s not a dry legal debate. It’s a visceral blow to the nation's health, civil, judicial, and moral. The harm radiates outward, chilling free speech, stressing the judiciary to its breaking point, and poisoning the well of trust between the American people and their own military.

A. The Civil Impact: The Militarization of Dissent

Let’s be clear about what this looks like on the ground. It’s the sight of uniformed soldiers, armed, standing on a street corner where kids usually wait for the school bus. It’s the low rumble of military vehicles on city streets. This isn’t law enforcement. It’s an occupation. And it has a profound and immediate chilling effect on First Amendment rights. People who would otherwise show up to a protest, to make their voices heard, will stay home. They will be afraid. And that fear is the point. It’s a tactic to militarize dissent, to reframe political opposition as a military problem.

This is especially toxic when the troops are from the state's own National Guard. These are citizen-soldiers. They are your neighbors, your mechanics, your school teachers. Forcing them into a confrontational stance against their own community is a monstrous abuse. It shatters the trust between citizens and the Guard, and between the state and the federal government.

From a structural perspective, this is a direct assault on federalism. Commandeering a state’s Guard is a violation of the spirit, if not the letter, of the Tenth Amendment. It reduces a sovereign state to a mere administrative unit of the federal government, stripping the governor of their authority to maintain public order. It sets a terrifying precedent: any President who disagrees with a state or city's politics can now claim an "emergency" and project military power onto their streets. This isn't a slippery slope; it's a cliff.

B. The Judicial Impact: A Forced Reckoning

While these actions are corrosive, they have one clarifying effect: they force the judiciary to do its job. The split between the Oregon and Illinois courts is unsustainable. You cannot have a country where the President’s power to deploy the military depends on the zip code of the courthouse. This reality creates an urgent, unavoidable need for the appellate courts and the Supreme Court to step in and create a single, coherent national standard.

These cases are also a stress test for the political question doctrine, the judiciary's traditional excuse for staying out of military affairs. The argument that courts shouldn't second-guess the Commander-in-Chief falls apart when the battlefield is a city street in America. The courts aren't being asked to review combat tactics; they are being asked to read a statute passed by Congress and determine if the President followed the law. That is the very essence of the judicial function as laid out in Marbury v. Madison. To refuse to answer that question is an abdication of duty. A victory for the states here would be a powerful reaffirmation that the President serves the law; he does not stand above it.

C. The Moral Impact: Poisoning the Well

Perhaps the deepest, most lasting damage is to the military itself. The American system depends on an apolitical military, a force that serves the Constitution, not a political party or a specific President. Using the National Guard as a political tool, as a prop for a tough-on-crime narrative or as an intimidation force against political opponents, corrodes that sacred principle. It risks creating the perception that our soldiers are not defenders of the nation, but agents of a partisan agenda.

Think of the individual Guard member. The young woman from Eugene ordered to stand a post in Portland, facing down her own neighbors. The young man from Peoria sent to Chicago for a mission he knows is based on political rhetoric, not a genuine threat. This is a moral injury. It damages morale, breaks unit cohesion, and betrays the trust that these young men and women placed in their leaders.

And the long-term institutional cost is staggering. The National Guard’s effectiveness in responding to real emergencies, like hurricanes and floods, depends on the deep trust it has within the community. When that same force is used as a political hammer by the federal government, that trust evaporates. The next time the Guard is deployed for a legitimate disaster relief mission, they may be met with suspicion and hostility. The President's actions don't just tarnish the Guard's reputation; they risk breaking one of the most vital tools this country has for responding to a real crisis. By crying "rebellion" when there is only protest, the administration devalues the very language of emergency, making it harder to unite the country when a true catastrophe strikes.

VI. The Path Forward: A Supreme Court Showdown

The conflicting rulings from Oregon and Illinois have lit a fuse that runs directly to the steps of the Supreme Court. A circuit split on a question this fundamental, the power of the President to use the military against the will of a state, is a constitutional crisis in the making. Supreme Court review is not just likely; it is a necessity. The Court will have no choice but to take up these cases and finally, decisively, draw the line.

The central question they will face is this: Does 10 U.S.C. § 12406 permit courts to meaningfully review the President’s factual basis for federalizing the National Guard, and if so, what is the standard?

There are three likely paths the Court could take:

1. Affirm Deference (The Blank Check): The Court could side with the executive, adopting a standard so deferential it amounts to no review at all. It would have to lean on the dusty 1827 precedent of Martin v. Mott, which suggested the President is the "sole and exclusive judge" of the facts justifying a call-up. This would be a radical expansion of executive power, effectively giving the President a blank check to deploy troops domestically whenever he can articulate a "colorable" reason.

2. Affirm Scrutiny (The Judicial Check): The Court could side with the spirit of Judge Immergut's ruling and affirm a standard of meaningful judicial review. This would reaffirm the principle of Sterling v. Constantin, requiring the government to present actual facts to justify its actions. It would establish a strong, lasting check on the domestic use of military force, preserving the balance between state and federal power.

3. Adopt the Middle Ground (The Ambiguous Compromise): The Court could formally adopt the "colorable assessment" standard but try to give it more substance, to define its edges. This path is fraught with peril. While it’s an attempt to balance executive needs with judicial oversight, it risks cementing an ambiguous standard into law, leaving the door open for future abuse.

The Court’s decision will echo far beyond this specific statute. The federal code is littered with emergency powers granted to the President. The standard of review established in this case will become the precedent for challenges to all of them. This isn't just about troops in Portland. This is the proxy battle for the next generation of separation of powers jurisprudence. It is a fight to decide whether the word "emergency" is a legitimate call for action, or simply a key that unlocks the cage of executive power. The stakes could not be higher.