On December 23, 2025, in Trump v. Illinois, the Supreme Court denied the federal government’s request to stay a lower-court order that prevented the President from deploying the National Guard in Chicago. The Court preliminarily concluded that the statutory prerequisite for deploying the National Guard—that the President be “unable with the regular forces to execute the laws of the United States”—was not satisfied.
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Overwhelming evidence supports the district court’s and Professor Lederman’s view that “the regular forces” means the full-time military. “Forces” refers to the military; “regular” refers to the full-time military, as opposed to the reserves. [...]
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[...][T]he Posse Comitatus Act says: “don’t use the military to enforce the law unless an exception applies.” [...] Congress is saying that if the President tries and fails to enforce the law using the military, he can use the National Guard, not that he’s “unable” to enforce the law using the military when Congress tells him not to.
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You might find this reasoning dissatisfying.
At every step, this analysis treats the interpretation of 10 U.S.C. § 12406 as a kind of linguistic puzzle to be solved. The first step addresses how the words “regular forces” would have been understood in 1908. The second step focuses on how people communicate with their babysitters. The third step starts with an old-school statutory interpretation canon and adds some nifty deductive reasoning.
This analysis is so … limited. There is nothing about the policy merits of using the military for domestic law enforcement, the policy merits of using the regular military versus using the National Guard, or the reason we even have a National Guard. [...] Can you really interpret this statute correctly without achieving a deeper understanding of these issues?
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I support this approach because it is consistent with textualism, the mode of interpretation that I favor. Textualism prescribes both a goal—interpret statutes according to their ordinary meaning at the time of enactment—and a means of achieving that goal—consider only those materials that illuminate the meaning of the text and ignore the rest. [...] I will spare you an apologetic for textualism and instead highlight a few ways in which Trump v. Illinois shows textualism’s benefits.
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