In the Supreme Court case Trump v. Illinois, the Court ruled that in order to federalize the National Guard under 10 U.S.C. § 12406(3), the president would need to demonstrate that he is unable to execute federal law with regular U.S. military forces. However, the majority also made clear that § 12406 is not excluded from the Posse Comitatus Act, which states that the military cannot be used to execute federal laws. With this avenue closed to him, President Trump may turn to the Insurrection Act to activate National Guard or even regular active-duty troops to enforce his agenda. CERL Advisory Council Member George Croner discusses how the Supreme Court will likely have to weigh in on this matter.

George W. Croner was the principal litigation counsel in the Office of General Counsel at the National Security Agency (NSA). He is a senior fellow at the Foreign Policy Research Institute (FPRI) in its national security program and a member of CERL’s Advisory Council. Read his full bio here. 

The views expressed here are the author’s own and do not necessarily represent those of any organization or university.