President Trump Holds the Legal Cards on the Use of the Military in the Domestic Sphere
The protective power for the regular military, and the Insurrection Act, lie in the wings
I think the Oregon National Guard decision late last week presented a close case. I also think that the decision ultimately matters little. President Trump has other more powerful legal authorities to deploy the Guard and regular armed forces in the domestic sphere. Some of them have broad and easy-to-satisfy triggers, no built-in congressional check, and demand significant judicial deference. These dangerous authorities were much discussed during Trump 1.0, especially near the end. Yet there was little interest in reforming them—in Congress or the White House—during the Biden years. And here we are.
The Oregon Case
The president in an executive order issued in June authorized federalization of the National Guard under 10 U.S.C. § 12406 in order to protect Immigration and Customs Enforcement (ICE) and other federal personnel in carrying out their functions, and to protect federal property. Section 12406 authorizes the president to “call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary” to “suppress” a “rebellion or danger of a rebellion,” or to execute the laws of the United States if he is “unable with the regular forces to execute the laws of the United States.”
On September 27, President Trump announced that he was “directing the Secretary of War, Pete Hegseth, to provide all necessary Troops to protect War ravaged Portland, and any of our ICE Facilities under siege from attack by Antifa, and other domestic terrorists.” He added: “I am also authorizing Full Force, if necessary.” Hegseth implemented this directive in accordance with the June EO and 10 U.S.C. § 12406.
Federal Judge Karin Immergut enjoined the National Guard federalization after concluding that the president had not shown that he was “unable with the regular forces to execute the laws of the United States” in Portland. Drawing on an earlier Ninth Circuit decision under Section 12406 in the L.A. deployment case, Immergut described the deference owed to the President as follows:
[A] reviewing court must give “a great level of deference to the President’s determination that a predicate condition exists.” [Newsom v. Trump, 141 F.4th 1032, 1048 (9th Cir. 2025)]. A court “review[s] 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, 278 U.S. 378, 399 (1932)). At the same time, the Executive’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) (quoting Sterling, 278 U.S. at 399–400).
One can question the Ninth Circuit’s reading of Sterling. First, Sterling is a case about a governor’s imposition of martial law under state law. Second, the Court said the governor had “discretion to determine whether an exigency requiring military aid . . . has arisen” and that “[h]is decision to that effect is conclusive.” The Court relied on (among other cases) Martin v. Mott, which recognized absolute judicial deference to the president with respect to a statute analogous to Section 12406. Sterling (like Mott) thus seems to treat the executive’s view of the “exigency”— satisfaction of the triggering statutory condition—as “conclusive.” The exigency in the Oregon case is whether the president was unable to execute the laws under Section 12406. Sterling’s discussion of “good faith” and related issues concerned not the exigency triggering the statute, but “the measures to be taken in meeting force with force.” This latter issue—the allowable scale or type of force to meet the threat—is not presented in the Oregon case.
Applying the Ninth Circuit’s statement of the deference standard, the district court ruled that the evidence did not support the conclusion that the president was “unable . . . to execute the laws.” Judge Immergut noted that protests at the ICE facility “were not significantly violent or disruptive” in the weeks leading up to the September 27 directive and that “protest activity in September generally did not involve violence against federal property or personnel” (emphasis added). In assessing whether the president was unable to execute the laws in Portland, she excluded from consideration the sustained violence earlier in the summer; Federal Protective Service resource constraints due to violence and threats against ICE in other parts of the country; and the government’s assessment that the ICE disruption across the country enhanced the danger to federal persons and property in Portland.
As I explained in my chat with Bob yesterday, I think Immergut wrote a credible opinion and that this is a close case. If one focuses narrowly on the September events alone, it is indeed hard to say that the president meets the statutory standard. But I am not sure that the court’s narrow focus on September—and its exclusion of the other factors that might have been relevant to the president’s judgment—is the right approach. Nor am I sure this approach is consistent with the government’s need to establish only a “colorable assessment of the facts and law within a ‘range of honest judgment.’”
Of course, if one steps back from the facts presented in court and considers the larger picture, especially the president’s Truth Social comments in announcing the federalization (and his many other comments on the matter), one might conclude that the decision to federalize the Guard in Oregon was politically motivated and made in bad faith. Portland is not currently or recently, as the president said, “War ravaged”; the ICE Facilities are not currently or recently “under siege from attack by Antifa”; the situation was not “lawless mayhem”; and “ANTIFA and the Radical Left Anarchists” had not, at least recently, “been viciously attacking our Federal Law Enforcement Officers.”
The district court relied on these and other exaggerations and false statements to conclude that the president’s determination to federalize the National Guard in Oregon was not “conceived in good faith” and was not made “in the face of the emergency and directly related to the quelling of the disorder or the prevention of its continuance.”
If the Sterling “good faith” standard is the right one, the president’s social media discourse could conceivably be relevant, although as I said in the chat, I do not see how a court operationalizes that rule if the government otherwise presents facts in court showing that the statutory standard was met. The other part of the statement from the Ninth Circuit that the district court relied on—that the federalization must come “in the face of the emergency and directly related to the quelling of the disorder or the prevention of its continuance”—is not what Section 12406 says, and I doubt it will survive review as the controlling standard in the Supreme Court.
All in all, a tough case. No one looking at the facts on September 27 would conclude that the president on that day was “unable with the regular forces to execute the laws of the United States” in Portland. But it is not clear that the court showed the president proper deference in excluding all but recent September events; and the president’s inaccurate and exaggerated statements have uncertain legal relevance if the determination is otherwise supported in fact and law.
The President’s Other Powers
Whatever one thinks about the proper interpretation of Section 12406 and the district court decision, the president has at least two other authorities waiting in the wings. One of these authorities, the Article II protective power, has advantages for the president over Section 12406 but is untested in federal court. Another of these authorities, the Insurrection Act, gives the president much broader power to use troops in the homeland; has a greater claim to presidential deference than Section 12406; and has triggers that are easier—perhaps much easier—to satisfy as a legal matter than Section 12406.
Consider first the president’s protective power, which is the substantive power the president is asserting in Oregon through the federalized Guard. The protective power is the president’s inherent or independent Article II power to protect federal personnel, property, and functions. The key point is that the president can assert the protective power without reliance on Section 12406. He can deploy regular armed forces without any need to federalize the Guard. Presidents often have.
William Rehnquist, then head of the Office of Legal Counsel, wrote the leading executive branch opinion on the protective power in 1971. As Chris Mirasola explains in his outstanding definitive treatment of the issue, the protective power has a long pedigree in practice but an uncertain basis in Article II and Supreme Court case law. If the president relied on Article II alone to use regular armed forces for the protective function, it is hard to know what the Supreme Court would say about its validity or about the deference due to the president.
Now consider the much more robust Insurrection Act. That “Act” (it is really the product of several statutes enacted mainly over the course of the nineteenth century) provides, in relevant part and with emphasis added, the following:
10 U.S.C. §252. Use of militia and armed forces to enforce Federal authority
Whenever the President considers that unlawful obstructions, combinations, or assemblages, . . . make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.
10 U.S.C. §253. Interference with State and Federal law
The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—
(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
The italicized portions here make plain why Bob and I once concluded that the Insurrection Act is “a dangerous, centuries-old federal statute that authorizes the president, with few restraints, to deploy the U.S. military inside the United States to suppress threats the president perceives to the constitutional order.” The power authorized here is astounding.
First, these statutes authorize deployment of regular armed forces. The president need not worry about the legal intricacies of federalizing the National Guard.
Second, these statutes authorize the president to use the military not just to protect federal functions and property, but also to engage in law enforcement functions. And not just law enforcement functions related to immigration—any law enforcement function that satisfies the broad triggers (including “violence”) under the Act. Notably, an Insurrection Act deployment operates as an exception to the Posse Comitatus Act, which prevents the use of the military for law enforcement unless “expressly authorized” by the Constitution or Statute. It constitutes an express statutory authorization that satisfies the exception and thus skirts the bar of the PCA.
Third, the triggers are varied and easier to satisfy than the Section 12406 trigger. The president need not show that he is “unable . . . to execute the laws of the United States.” Under Section 252, he need only show the “impracticab[ility]” of enforcing the law by ordinary judicial procedures. Under Section 253, the president can use the military in a domestic law enforcement role in the face of “any” violence or unlawful combination, if (1) the violence or combination so hinders federal law execution that any part or class of people in the state are deprived of legal protection and the state doesn’t or can’t provide protection; or, much easier, if (2) the domestic violence or combination simply “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws” without (in contrast to (1)) any overt statutory need to assess the state’s involvement.
Finally, the president has a stronger statutory claim to deference under these statutes than under Section 12406. Section 252 is satisfied “[w]henever the President considers” that it is impracticable to enforce federal law and may use the armed forces “as he considers necessary” to enforce those laws. Section 253 says that the president “shall take such measures as he considers necessary to suppress” the violence or unlawful combination. Section 12406 lacks these statutory deference factors.
What’s Ahead
President Trump said on Monday that he would invoke the Insurrection Act “if it was necessary,” and added: “So far it hasn’t been necessary. But we have an Insurrection Act for a reason.”
This is pretty clearly where we are headed—although on what scale, and to what uses, and with what reaction by the American people, no one can know. My main point is that the federal district court decision is not nearly as consequential as many cheering it have proclaimed. The fact is that Congress long ago gave away the store on the president’s power to deploy military forces domestically. Ultimately, courts can only apply the law, and the relevant law here is very permissive.
To be sure, every single word of the Insurrection Act will be intensely contested in court should the president invoke it. And given the administration’s tendency to blunder, to bully, to overstep, and to develop factual predicates inadequately, not to mention the president’s always-legally-unhelpful social media activity, litigation might be tough and victory for the administration in every instance cannot be assumed. My point is that if the easy-to-meet statutory predicates are satisfied, and with decently competent lawyering, courts will not be able to stop the president from a very robust lawful domestic use of the military under the Insurrection Act, should President Trump choose to go there.
I am reminded of Justice Jackson’s words near the end of Youngstown Steel: “I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. . . . We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.”