The spectacle of federally controlled soldiers patrolling American cities has forced the country into a confrontation with its own constitutional design.
By Matthew A. McIntosh
Public Historian
Brewminate
Introduction
In the fall of 2025, American streets are once again bristling with soldiers in camouflage, but not deployed to foreign battlefields. They are in Portland, Memphis, Chicago, and other cities, federalized by President Donald Trump against the wishes of governors and mayors who insist the crisis is political, not military. Protesters march against their presence, judges issue emergency injunctions, and lawsuits multiply across the country. The question at the center of this conflict is as stark as it is historic: does the president have the power to turn the National Guard into a domestic army, overriding states and local communities, or do the constitutional guardrails of federalism still hold?
Trump’s strategy is built on a sweeping interpretation of executive authority. Through new executive orders, he has expanded legal immunities for police and created broad leeway for military-style support in urban law enforcement. His administration has moved to federalize state Guard units on the grounds of “rebellion” and “public disorder,” despite objections from governors who argue such conditions do not exist. In some places, courts have intervened. A federal judge in Oregon temporarily blocked the deployment of Guard troops to Portland, ruling that the administration’s justification stretched the law beyond recognition. In Chicago, Trump’s vow to “send in the Guard” has already triggered legal threats and accusations of authoritarian overreach.
The battle lines are clear: an emboldened executive seeking to federalize policing power versus states, cities, and courts that claim constitutional sovereignty. The outcome may determine whether the National Guard remains a dual-status institution rooted in federalism, or becomes an instrument of centralized, coercive control. This article explores the legal history, the administration’s strategy, the wave of resistance, and the uncertain future of a nation caught between constitutional order and the creeping shadow of domestic militarization.
Historical and Legal Baseline: Guard, Posse Comitatus, and Federalism
Overview
The current clash cannot be understood without tracing the long and often ambiguous history of America’s reliance on citizen militias and the National Guard. From the colonial era onward, militias were designed as bulwarks of local control, bodies raised by states and communities to defend themselves, not to serve as instruments of central authority. When the modern National Guard emerged in the early twentieth century, it inherited this dual status: troops belonged simultaneously to the states, under the command of governors, and to the federal government, subject to being called into national service during wars or emergencies. This “dual enlistment” arrangement has always generated tension, with constitutional lines blurred whenever the president claims the right to federalize state forces.
The Guard’s Dual Status
The dual nature of the Guard was codified in Title 32 of the U.S. Code for state service and Title 10 for federal service. When in state control, Guard units can assist during natural disasters or unrest at the governor’s request. Once federalized under Title 10, however, they become part of the national military chain of command and lose their local accountability. Historically, such federalization has been limited to moments of extraordinary crisis, from World War deployments to the desegregation crises of the 1950s and 1960s, when presidents used the Guard to enforce civil rights rulings over the resistance of segregationist governors. Yet even in those cases, courts and the public regarded federal intervention as exceptional, not routine.
Posse Comitatus and the Military-Civil Divide
Another cornerstone of the legal landscape is the Posse Comitatus Act of 1878, which explicitly restricts the use of federal troops in domestic law enforcement. Passed in the wake of Reconstruction, it reflected deep unease about standing armies patrolling American streets. While the Act does not directly apply to the National Guard under state authority, once Guard units are federalized they fall under its prohibitions. The only statutory escape valve is the Insurrection Act, which allows the president to deploy federal forces, including the Guard, in cases of insurrection, rebellion, or when state authorities are unable or unwilling to enforce federal law. Still, the bar for invoking such power has traditionally been high (riots in Detroit in 1967, the Los Angeles unrest in 1992) and courts have emphasized that the executive cannot use military authority casually against civil society.
Federalism and the Anti-Commandeering Principle
Overlaying these statutory provisions is the deeper principle of federalism. The Tenth Amendment reserves powers not delegated to the federal government for the states, and the Supreme Court has repeatedly ruled against federal attempts to “commandeer” state institutions. In Printz v. United States (1997), for instance, the Court struck down a law requiring state officers to enforce federal gun background checks, reinforcing that state officers cannot be forced into federal service. Though the Guard occupies a unique constitutional category, the anti-commandeering doctrine underlines a larger point: state sovereignty is not easily displaced, and the federal government cannot simply absorb state institutions without legal justification.
Judicial Oversight and the Question of Deference
Finally, there is the matter of judicial review. Historically, courts have wrestled with whether executive determinations of “insurrection” or “emergency” are subject to oversight. In some periods, courts have deferred heavily to presidential claims, citing national security concerns. In others, they have intervened to ensure that statutory prerequisites are met. This ambivalence has left open the possibility of abuse, precisely the concern now raised as the Trump administration stretches the language of rebellion and disorder to justify deployments in cities where governors and mayors argue no such conditions exist.
The Trump Administration’s Push: Strategy and Legal Claims
Overview
Trump’s renewed reliance on the National Guard reflects a deliberate political strategy: to project an image of strength in the face of domestic dissent while bypassing governors and mayors who resist his agenda. The administration has paired rhetorical threats with executive orders and legal maneuvers designed to expand federal authority over traditionally state-controlled forces. The result has been a cascade of confrontations that pit federal command against local sovereignty.
Expanding Executive Power through Orders
Early in his second term, Trump signed a sweeping executive order that dramatically widened police powers, extended legal immunities to law enforcement officers, and authorized military-style support for urban policing. Critics argue that the order represents a blueprint for domestic militarization, effectively shielding officers and troops from accountability while eroding civil liberties.
Civil rights groups have warned that the language of the order creates a legal gray zone in which federalized Guard troops can function as de facto internal security forces, unconstrained by the norms of community policing.
Deployments and Threats of Deployment
The administration has already tested these expanded powers on the ground. In Portland, federal officials attempted to call up 200 Oregon National Guard troops to quell protests, a move immediately challenged by the state and halted by a federal judge. The judge’s ruling underscored the lack of evidence for a rebellion or insurrection, sharply criticizing the administration’s justification. In Memphis, protests erupted downtown in anticipation of Guard deployments, with demonstrators denouncing the move as an authoritarian escalation. In Chicago, Trump publicly pledged to “send in the Guard” despite the absence of a formal request from city or state officials. These flashpoints reveal a pattern: asserting federal prerogative where states either object or insist no emergency exists.
Legal Justifications and Statutory Stretching
The statutory basis for these actions rests primarily on 10 U.S.C. § 12406, which permits the president to call Guard units into federal service in cases of “invasion, rebellion, or inability of the state to enforce federal law.” The Trump administration has interpreted this language expansively, equating protests and localized unrest with “rebellion” and casting political opposition as obstruction of federal mandates.
Legal scholars argue that this stretches the statute beyond recognition. By conflating political dissent with insurrection, the administration risks erasing the line between constitutionally protected protest and genuine threats to public order.
The Politics of Centralization
Underlying these maneuvers is a broader political ambition: centralizing authority over security and policing at the federal level. By sidelining governors and circumventing local control, Trump casts himself as the guarantor of order, while portraying opponents as weak or complicit in disorder. The deployments are not only about security, they are symbols of political dominance, designed to intimidate critics and redefine the balance of power between the states and the presidency.
Resistance: States, Cities, and the Legal Front
Overview
The president’s attempt to reframe the National Guard as an instrument of federal policing has not gone unchallenged. Across the country, governors, mayors, civil rights groups, and private citizens have mobilized to contest both the legality and the legitimacy of these deployments. Their responses have unfolded in three main arenas: the courts, state governments, and the streets.
Legal Pushback in the Courts
The most immediate resistance has come through litigation. In Portland, Oregon officials filed suit within hours of the Guard’s federal call-up. U.S. District Judge Karin Immergut issued a temporary restraining order halting the deployment, ruling that the administration’s justification, the specter of “rebellion,” lacked factual basis and violated constitutional principles of federalism. The decision signaled a willingness by at least some courts to scrutinize the president’s claims rather than defer automatically.
California has also become a testing ground. Governor Gavin Newsom challenged Trump’s earlier deployment of Guard forces in Los Angeles, winning an initial ruling that the move exceeded presidential authority. Though the Ninth Circuit stayed that order on appeal, the case remains pending and has drawn national attention as a bellwether for the limits of executive power. These rulings reveal a judiciary in flux; some judges demanding evidence of genuine insurrection, others reluctant to constrain presidential discretion in security matters.
States and Cities Asserting Sovereignty
Governors and mayors have not limited themselves to the courts. Many have denounced Trump’s actions as authoritarian, insisting that policing their cities remains their constitutional responsibility. In Chicago, Mayor Brandon Johnson threatened legal action before federalization could even occur, declaring that “we do not consent to militarization of our neighborhoods.” Governors from Oregon to New York have publicly rejected federal pressure to hand over their Guard units, framing their defiance as a defense of the Tenth Amendment.
Some states are experimenting with creative counter-measures: legislative proposals to restrict federal control over state Guard units unless an official state of insurrection is declared, and state attorneys general coordinating to file amicus briefs in ongoing cases. While their authority may ultimately be limited by federal law, these actions highlight a refusal to quietly acquiesce.
The Protest Front: Public Resistance
On the ground, citizens have also responded. In Memphis, demonstrators filled downtown streets with chants against “Trump’s Army,” carrying signs comparing the Guard’s presence to an occupying force. Protests across other cities echo this sentiment, linking the deployments to a broader erosion of civil liberties. Civil rights organizations warn that the chilling effect of armed troops patrolling protests undermines First Amendment freedoms.
A Growing National Divide
Together, these legal, political, and civic responses are reshaping the national landscape. Far from presenting a united front, America is fracturing into states that resist federal militarization and an executive that demands loyalty and compliance. The question is no longer whether opposition exists, it clearly does, but whether it can withstand sustained pressure as the administration doubles down on its interpretation of executive power.
Analytical Tensions and Uncertainties
Overview
Even as lawsuits are filed and protests mount, the constitutional terrain remains unsettled. The Trump administration’s actions expose longstanding ambiguities in the balance between executive authority, state sovereignty, and judicial oversight. These tensions cut to the core of the American system, where the promise of divided power collides with the pressures of executive ambition.
Defining “Rebellion” and “Insurrection”
The linchpin of Trump’s legal argument is the president’s statutory power to federalize Guard units in cases of rebellion or insurrection. But the statute provides no precise definition of those terms. What qualifies as a rebellion? A riot? A sustained protest? A governor’s refusal to follow federal direction?
Courts have historically avoided setting bright-line rules, preferring to treat such questions as political rather than judicial. This reluctance creates an opening for expansive presidential claims, where ordinary unrest or even organized dissent might be framed as a threat to federal order.
Judicial Deference vs. Judicial Limits
Historically, courts have oscillated between deferring to executive claims of necessity and stepping in to impose limits. In wartime and during crises, deference often prevails, on the theory that the executive must act swiftly. But in peacetime, or when the threat appears exaggerated, courts have been more willing to intervene.
The rulings in Portland and Los Angeles suggest a judiciary that is, at least in part, prepared to test the administration’s assertions. Yet other judges may prove reluctant to overrule the president on matters framed as national security, setting the stage for inconsistent results that could ultimately reach the Supreme Court.
The Slippery Slope of Militarization
Even if courts uphold some challenges, the steady normalization of federal military presence in American cities poses its own danger. Once troops are deployed in the name of “order,” it becomes easier to justify their return the next time unrest flares. Federal policing powers that were once extraordinary can, through repetition, become ordinary. The same logic applies to Trump’s executive orders expanding police immunities; what begins as an emergency measure risks becoming a permanent shift in the legal landscape, eroding accountability and civilian oversight.
Political Constraints Beyond the Law
Not all limits on executive power are judicial. State governments retain tools of resistance, from refusing cooperation to withholding resources. Public protest and civil resistance also play a role, shaping the political costs of militarization. If citizens see Guard deployments as overreach, they may pressure local leaders, file additional lawsuits, or mobilize electorally against those who enable federal intrusion. These political dynamics remind us that the Constitution is not self-enforcing; its survival depends on institutions and citizens willing to defend it.
Scenarios: Possible Trajectories
Overview
The outcome of this struggle remains uncertain, hinging on the interplay of law, politics, and public will. Several distinct scenarios could unfold in the months ahead, each carrying profound consequences for American federalism and civil liberty.
Courts and States Contain Executive Overreach
In the first scenario, state lawsuits succeed in establishing precedent that sharply limits presidential authority to federalize the Guard without demonstrable insurrection or invasion. Courts issue injunctions, appellate rulings reinforce them, and the Supreme Court affirms the principle that statutory thresholds must be factually satisfied. States continue to resist politically, refusing logistical cooperation and asserting the anti-commandeering principle. In this path, Trump’s attempts at militarization become largely symbolic, checked by the judiciary and state sovereignty.
Partial Acquiescence and Negotiated Compromise
A second possibility is muddled compromise. Courts may grant partial victories, permitting some federalization but requiring limits on scope or duration. Governors may reluctantly cooperate under pressure, negotiating terms to protect local command structures. The result is a patchwork of constrained deployments, where federal power expands incrementally without a decisive constitutional showdown. This scenario preserves some checks but risks slowly normalizing federal encroachment.
Judicial Abdication and Broad Executive Prerogative
In another trajectory, courts defer to presidential claims of necessity, citing national security or public safety. Judges decline to second-guess executive definitions of rebellion, effectively giving Trump a free hand. States are forced into compliance, and Guard units become instruments of federal power wherever the administration deems necessary. This outcome would mark a profound shift in the balance of power, entrenching a precedent of near-unreviewable executive discretion in domestic security.
Flashpoint and Constitutional Crisis
The most volatile scenario envisions a direct clash between federal and state authorities. A governor could openly defy a federal order, refusing to release Guard units or threatening state prosecution of federally controlled forces. If the administration responds with arrests, seizures, or further deployments, the confrontation could escalate into a constitutional crisis, one not unlike those imagined in the darkest chapters of American history. In such a moment, the Supreme Court would face extraordinary pressure to act, but its legitimacy might itself be strained under partisan divisions.
Lessons from Past and Comparative Analogues
Overview
This is not the first time the United States has faced the question of whether federal force can be turned inward. History offers both warning signs and guideposts, reminding us that each precedent set in crisis becomes a touchstone for the future.
Reconstruction and the Birth of Posse Comitatus
In the aftermath of the Civil War, federal troops occupied Southern states to enforce Reconstruction laws and protect the rights of freedpeople. While necessary to curb violent resistance, the presence of armed soldiers in civilian spaces fostered deep resentment and ultimately gave rise to the Posse Comitatus Act, which sought to draw a bright line between military and civilian law enforcement. That line has been blurred before but never erased without consequence.
Civil Rights Era Deployments
The mid-twentieth century saw presidents deploy the National Guard in moments of moral crisis. In 1957, Dwight Eisenhower federalized the Arkansas Guard to enforce school desegregation in Little Rock, overriding Governor Orval Faubus’s defiance of Brown v. Board of Education. In 1962, John F. Kennedy ordered Guard units into Mississippi to ensure James Meredith could enroll at the University of Mississippi.
These interventions were justified as necessary to uphold constitutional rights when state governments actively obstructed them. Yet even then, presidents emphasized that such actions were exceptional, not a model for routine governance.
Urban Unrest and Limited Federalization
During the late 1960s and early 1990s, Guard units were deployed during episodes of urban unrest, such as Detroit in 1967, Los Angeles in 1992. In both cases, governors requested federal assistance. The difference is critical: federal power was exercised in cooperation with states, not against them. Today’s deployments invert that relationship, using federalization as a weapon against state sovereignty rather than as support for it.
Comparative Perspectives Abroad
Other democracies have grappled with similar dilemmas. In Germany, the Basic Law sharply restricts military involvement in domestic affairs, a reaction to the abuses of the Nazi regime. France, by contrast, has normalized the use of soldiers in counterterrorism patrols, blurring the line between civilian and military security.
These examples show the stakes: once militarization of civic life becomes ordinary, rolling it back is exceptionally difficult. The United States now stands at a similar crossroads, forced to choose whether the Guard is a citizen-soldier institution rooted in federalism or a national gendarmerie beholden to the executive.
Recommendations and Reflection
Overview
The struggle over the Guard’s federalization is not simply a legal debate; it is a test of civic will. Institutions and citizens alike must decide whether to accept creeping militarization or to reinforce the constitutional boundaries that protect democratic life. Several avenues of resistance and reform emerge from this moment.
For the States and Cities
Governors and mayors must continue asserting their sovereignty, not only through lawsuits but through practical measures. Legislatures could pass statutes restricting cooperation with federally commandeered Guard units unless an insurrection is formally declared and judicially recognized. State attorneys general can coordinate litigation strategies to ensure that challenges are not isolated but national in scope. These actions create friction that makes unilateral federalization costlier and less sustainable.
For the Courts
Judges face a pivotal responsibility. While courts have often been reluctant to second-guess the executive in security matters, the health of the republic demands that they draw clear lines. Courts should insist on factual evidence before allowing the federalization of state Guard units, resisting the temptation to treat “emergency” as a magic word. A robust doctrine of reviewability, affirming that executive claims of rebellion or insurrection are subject to judicial scrutiny, is essential to prevent abuse.
For Civil Society and the Public
No less important is the role of citizens. Protest movements, civil rights organizations, and professional associations must continue raising awareness of the stakes. Public opinion remains one of the strongest checks on overreach; when people reject militarization, political leaders feel the cost. Citizens can also press for legislative reform at the federal level, demanding greater transparency in the invocation of emergency powers and clearer statutory definitions of “insurrection” and “rebellion.”
A Broader Warning
The lesson is clear: liberties are rarely lost in a single stroke. They erode incrementally, as extraordinary measures are normalized through repetition. If states and courts treat Trump’s federalization of the Guard as a tolerable exception, it risks becoming a precedent for future presidents of any party. To preserve the delicate balance of federalism and prevent the rise of an executive-controlled domestic army, institutional resistance must be immediate, coordinated, and unapologetic.
Conclusion
The spectacle of federally controlled soldiers patrolling American cities has forced the country into a confrontation with its own constitutional design. The National Guard was meant to embody dual sovereignty, rooted in state authority, available to the federal government only in extraordinary crises. President Trump’s expansive use of executive orders and broad claims of insurrection threaten to undo that balance, turning a citizen-soldier force into a federal gendarmerie.
Yet history is not destiny. States have filed lawsuits, judges have halted deployments, and citizens have marched in defiance. Each of these acts affirms that American federalism is more than a parchment theory; it is a living system, dependent on those willing to defend it. Whether that defense proves strong enough to withstand sustained executive pressure remains uncertain. Courts may yet yield to claims of necessity, and states may find their resistance limited by statutory loopholes and political realities. But acquiescence is not inevitable.
The stakes are larger than the present conflict. At issue is whether constitutional guardrails (federalism, civilian oversight, judicial review) will continue to function as barriers against the concentration of power, or whether they will be eroded into symbols without substance. The line between emergency powers and authoritarianism has always been thin, maintained only by vigilance. If the courts, the states, and the public hold firm, the Guard can remain what it was intended to be: a force both of and for the people, not an instrument of executive will. If they fail, the United States risks stepping into a darker tradition, one where domestic militarization ceases to be an aberration and becomes the norm.
Originally published by Brewminate, 10.08.2025, under the terms of a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International license.
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