Harry Litman - The National Guard Was Never Meant for This
We’ve got another guest essay today from prominent constitutional litigator and ninja Supreme Court advocate Richard Bernstein, whom I’ve known for 35 years since we clerked together at the Supreme Court. Rich had a storied career as a big DC firm constitutional law litigator. Now retired, he continues to have his hands in or write about many of the most important cases in Trump 2.0.
The various cases involving activation of the National Guard under 10 U.S.C. §12406 present a few tricky statutory arguments. One of these is whether the president can stretch the term “regular forces” to include federal law enforcement agencies, effectively transforming the Guard into a roving national force. Judge April Perry’s recent decision blocking the National Guard from mobilizing in Illinois included an in-depth analysis of the issue. Rich explains why Judge Perry got it right.
On Friday, October 10, 2025, federal District Court Judge April Perry in Illinois ruled that the Administration was not authorized to federalize the National Guard for deployment in Illinois to assist ICE. 10 U.S.C. Section 12406(3) authorizes federalization only if “the President is unable with the regular forces to execute the laws of the United States.”
The Administration argued that “the regular forces” encompasses law enforcement agencies of the federal government and not merely the regular military. Judge Perry’s opinion comprehensively showed that “the regular forces” includes only the regular military, carefully analyzing the statutory language and its history as well as historical constraints going back to the founding on using either the militia—now called the National Guard—or the regular military to execute federal law domestically. As the Administration has not even argued that the National Guard should be federalized because the regular military is unable to execute federal law in Illinois, this provided one basis why the National Guard could not be federalized. Judge Perry’s statutory interpretation of “the regular forces” makes eminent good sense.
https://harrylitman.substack.com/p/the-national-guard-was-never-meant