Trump’s National Guard Plan Faces Legal Pushback and Constitutional Questions

OPINION — “I’m not going to answer particulars on something that may be in the planning process, but we definitely do have multiple layers of National Guard response forces, whether it’s in each state, whether it’s regionally, whether it’s Title 10 active duty, whether it’s Washington D.C. We’ve got a lot of different ways that constitutionally and legally we can employ Title 10 and Title 32 forces, and we will do so when necessary.”

That was Defense Secretary Pete Hegseth in the Oval Office this past Friday, after a meeting of the Trump administration’s Homeland Security Task Force, responding to a reporter’s question about whether the establishment of multi-state National Guard rapid response forces “that’s going to be trained in crowd control and civil unrest and deployed in all 50 states by April of 2026” is underway.

It’s worth remembering that buried as part of “Operational Actions” called for under an August 25, Trump Executive Order (EO) entitled, “Additional Measures To Address the Crime Emergency in the District of Columbia,” there is a section that reads: “The Secretary of Defense shall immediately begin ensuring that each State’s Army National Guard and Air National Guard are resourced, trained, organized, and available to assist Federal, State, and local law enforcement in quelling civil disturbances and ensuring the public safety and order whenever the circumstances necessitate, as appropriate under law.”

That EO section goes on to say. “In coordination with the respective adjutants general, the Secretary of Defense shall designate an appropriate number of each State’s trained National Guard members to be reasonably available for rapid mobilization for such purposes. In addition, the Secretary of Defense shall ensure the availability of a standing National Guard quick reaction force that shall be resourced, trained, and available for rapid nationwide deployment.”

Before Trump signed the August 25 EO, his assistant Will Scharf described it as “an executive order that contains a number of additional measures relating to crime and law enforcement in Washington, D.C. It charges, for example, your Secretary of Defense with establishing specialized units in both the D.C. National Guard and the National Guard units around the country specifically trained and equipped to deal with public order issues.”

Hegseth added about the response teams, “And at your direction as well, sir, [meaning Trump] it’s just common sense to make sure they’re armed as well.”

Under Title 10, the President can federalize any state’s National Guard if the country “is invaded or is in danger of invasion by a foreign nation,” if there’s “a rebellion or danger of a rebellion” against the federal government’s authority, or if the president “is unable with the regular forces to execute the laws of the United States.” Such an order “shall be issued through the governors of the States,” Title 10 says.

Under Title 32, state National Guard units can be deployed for federal purposes, but they remain under state control. Since the troops are under state control, they are not subject to the Posse Comitatus Act’s restriction against engaging in civilian law enforcement.

On August 26, retired-National Guard Maj. Gen. Randy Manner said on PBS: “I think this is unneeded and also very dangerous. It’s setting a new precedent.”

He went on, “When I was the acting vice chief of the National Guard Bureau, we absolutely already put into place the ability of having quick reaction forces in every state, depending on the size…They were at the time, of course, targeting the ability to respond to emergencies in the state such as floods, hurricanes, forest fires, earthquakes, and so on to be able to save lives. The difference here is that it’s focused on ‘public order.’ That’s very disturbing.”

Manner added, “Also, the idea of creating a unit whose primary mission is to deploy anywhere in the country to deal with potentially demonstrations or civil disorder, as the President sees fit…that is not in keeping with the mission of the National Guard as a strategic reserve for our military and for our nation.”

Manner then made an important point, relative to what has happened since: “This is something where the President is imposing the armed military to go into American cities. That is the most significant difference. And it’s very important to remember that civil disturbance deployments by governors is actually the smallest amount of missions that have ever been done by the National Guard. It is a rarity, whereas now the President is elevating it to be a significant capability for the National Guard.”

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Over the objections of the Governors of California, Oregon and Illinois, President Trump has ordered Title 10, federalized Guard units deployed – deployments which are all undergoing judicial tests.

In Illinois, U.S. District Judge April Perry on October 9, issued a temporary order that barred the Trump administration “from ordering the federalization and deployment of the National Guard of the United States within Illinois.”

Perry said in her opinion that there was “insufficient evidence of rebellion or a danger of a rebellion,” as required by Title 10, nor was there “sufficient evidence that the President was unable with the regular forces to execute the laws of the United States.” The Trump administration immediately appealed and moved for a stay of the order pending appeal.

On October 16, the U.S. Court of Appeals for the Seventh Circuit agreed with Judge Perry, writing that in their opinion “the facts do not justify the President’s actions in Illinois under [Title 10], even giving substantial deference to his assertions. The Circuit Court did, however, allow Presidential federalization of a National Guard unit, while prohibiting its deployment.

In its opinion, the Circuit Court made points about the “rebellion or danger of rebellion,” that are worth reviewing since it’s clear the Trump administration sees Title 10 allowing them to use military troops freely.

The Circuit Court wrote: “Political opposition is not rebellion. 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.”

The Court added, “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. Such conduct exceeds the scope of the First Amendment, of course, and law enforcement has apprehended the perpetrators accordingly. But because rebellions at least use deliberate, organized violence to resist governmental authority, the problematic incidents in this record clearly fall within the considerable daylight between protected speech and rebellion.”

I quote the Circuit Court opinion because the Trump administration from the start has claimed in this case before the District and Circuit Courts and elsewhere, that the President’s federalization of the Guard under Title 10 “is not judicially reviewable at all. Alternatively, it contends that the factual predicates of [Title 10] are satisfied in light of the deference due the President’s decision to federalize the Guard.”

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On October 17, the day after the Circuit Court opinion, Trump’s Solicitor General D. John Sauer filed an emergency motion with the Supreme Court seeking to block the Perry order that prevents deployment of the federalized Illinois National Guard units.

In seeking that order, which would also overrule the Seventh Circuit Court opinion, Sauer argued, as he had done unsuccessfully in District Court, “As a threshold matter, both the statutory language and historical tradition make clear that the President’s decision whether to federalize the Guard is not subject to second-guessing by the State of Illinois or a federal district court.” He then quoted Title 10 with respect to “rebellion or danger of rebellion.”

Sauer also wrote, to support the argument for deployment, that “The President has express statutory authority to ‘call into Federal service’ the National Guard, after which the Guardsmen serve under the command and control of federal military officials and ultimately the President as Commander in Chief.”

The Supreme Court has not yet acted on this emergency motion.

But as writers in Just Security said last Friday, “The government’s interpretation suggests that a President may deploy military forces anywhere in the United States for any reason, and that courts would have no authority to determine its legality. This assertion runs counter to U.S. history, the structure of powers related to the military in the U.S. Constitution, and the theory of checks and balances.”

Or as New York Attorney James D. Zirin wrote yesterday in The Washington Monthly, “If the Court grants Trump relief in Chicago, what will stop Trump from deploying National Guardsmen nationwide to supplement the ICE program in enforcing immigration laws? And then, based on some pretext that there is a rebellion, posting troops at select polling places nationwide to intimidate voters during the midterm elections?”

It is Zirin’s second fear, for the 2026 midterm congressional elections, that first drew my concern over Trump’s August proposal for all 50 states to have National Guard rapid reaction forces prepared to ensure “the public safety and order whenever the circumstances necessitate, as appropriate under law.”

There has been no public report I know of from the National Guard Bureau or Defense Department as to how many such units have been formed so far under the Trump administration, despite the April 2026 deadline. It is one of many things to watch for.

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