National Guard in U.S. Cities: What Courts Ruled and Congress Can Do
The short answer
Over the past 17 months, federalized National Guard troops, and in Los Angeles active-duty Marines, were sent into American cities over the objections of the governors responsible for them. After early rulings that gave the President room, the courts have now ruled against the core legal basis for those deployments: a federal judge in California, the Ninth Circuit on October 23, 2026, courts in Illinois and Oregon, and the U.S. Supreme Court in Trump v. Illinois on December 23, 2025.
The courts found that the President did not meet the conditions Congress set for calling a state's Guard into federal service. A California judge also found, after a trial, that troops in Los Angeles were used in violation of the Posse Comitatus Act, the 1878 law that keeps the military out of civilian law enforcement. That ruling is on appeal.
Courts can stop a deployment after the fact. Only Congress can rewrite the rules before the next one. The Congress elected on November 3, 2026 can investigate how these deployments were planned and used, and can clarify the laws so that no President of either party can turn the military into a domestic police force.
This is not about one President or one party. It is about whether the line between soldiers and police, which Americans have kept for nearly 150 years, still holds. Country over party. Patriot over partisan.
What happened in California?
On June 7, 2025, after protests against immigration raids in Los Angeles, the President federalized the California National Guard under 10 U.S.C. § 12406 over Governor Gavin Newsom's objection. About 4,000 Guard members and 700 active-duty Marines were deployed. Sixteen months later, the Ninth Circuit held the order exceeded the President's authority and violated the separation of powers.
Date | Event |
Oct. 23, 2026 | Ninth Circuit affirms the preliminary injunction (2–1). The federalization order was "ultra vires and unconstitutional" |
Dec. 31, 2025 | The President announces the end of Guard deployments in Los Angeles, Chicago and Portland |
Dec. 10–15, 2025 | Judge Breyer orders the Los Angeles deployment ended; the Ninth Circuit allows that order, and troops leave by December 15 |
Oct. 22, 2025 | The full Ninth Circuit declines to rehear the June stay ruling; ten judges dissent |
Sept. 2, 2025 | After a three-day trial, Judge Breyer finds the deployment violated the Posse Comitatus Act and bars military law enforcement in California. The ruling is stayed on appeal |
June 19, 2025 | A Ninth Circuit panel stays the restraining order, holding the President's decision is reviewable but entitled to "highly deferential" review, and that he likely acted lawfully at that early stage |
June 12, 2025 | Judge Charles Breyer issues a temporary restraining order: the President's actions "were illegal" and he "must therefore return control of the California National Guard" |
June 9, 2025 | California and Governor Newsom sue in the Northern District of California |
June 7, 2025 | The President federalizes the California Guard for 60 days to protect federal personnel and property |
What the Ninth Circuit decided on October 23, 2026
The same three-judge panel that had sided with the government in June 2025 revisited the case after the Supreme Court's decision in Trump v. Illinois. Writing for the majority, Judge Jennifer Sung held:
The President's decision is reviewable. Courts defer heavily, but must ask at a minimum whether the President's determination "reflects a colorable assessment of the facts and law within a range of honest judgment."
The "unable to execute the laws" ground failed. Applying Trump v. Illinois, the government had to show both that the President had lawful authority to execute the laws with the regular military, and that he was unable to do so. It showed neither.
The "rebellion" ground failed. Treating conditions in Los Angeles on June 7, 2025 as a "rebellion or danger of a rebellion" did not reflect a colorable assessment within a range of honest judgment.
The result. Because no part of § 12406 authorized the order, it "exceeded the President's statutory authority and encroached on Congress's calling forth power, in violation of the constitutional separation of powers." California was also likely to succeed on its Tenth Amendment claim.
Judge Eric Miller concurred on a procedural point. Judge Mark Bennett dissented, arguing the court should not have decided these questions with little briefing on the Supreme Court's intervening decision, and that the majority misapplied the standard for such claims.
The Posse Comitatus Act ruling
In his separate September 2, 2025 ruling after trial, Judge Breyer found that troops in Los Angeles had been used for civilian law enforcement in violation of the Posse Comitatus Act, and warned against the creation of a "national police force." His statewide injunction was stayed while the government appealed, and that appeal remains a key open question.
What happened in Illinois?
In October 2025, the President federalized members of the Illinois National Guard and sent Texas Guard members toward Chicago, over Governor JB Pritzker's objection, citing protests at an immigration facility in Broadview. The Supreme Court refused to let the deployment proceed.
District court (October 9, 2025). Judge April Perry blocked the federalization and deployment, crediting evidence that the protests were small and that state and local police had controlled them.
Seventh Circuit (October 16, 2025). The court allowed the Guard to remain federalized but kept the ban on deploying it, finding the claimed rebellion was not supported.
Supreme Court (December 23, 2025). In Trump v. Illinois (No. 25A443), the Court denied the government's emergency application. It concluded that "regular forces" in § 12406(3) likely means the regular U.S. military, so the President must first have lawful authority to use the military to execute the laws, and be unable to do so. The government had not identified that authority. Justice Kavanaugh concurred in the judgment; Justices Alito, Thomas and Gorsuch dissented.
Within days of that ruling, the President announced that the Guard would be withdrawn from Chicago, Los Angeles and Portland.
Other locations
City | What happened | Status |
Portland, Oregon | 200 Oregon Guard members federalized in September 2025; Judge Karin Immergut blocked the deployment, finding no "rebellion" | Withdrawn January 2026; the government later moved to drop its appeal |
Washington, D.C. | About 2,000 Guard members, many from other states, deployed since August 2025; a district judge found it unlawful in November 2025, but the ruling is stayed on appeal | Ongoing; extended through 2026 |
Memphis, Tennessee | Tennessee Guard deployed at the governor's request alongside a federal task force; a state court blocked it but stayed its ruling | Ongoing |
New Orleans, Louisiana | About 350 Louisiana Guard deployed at the governor's request in December 2025 | Deployed |
The distinction matters. In Memphis and New Orleans, a governor requested or approved the deployment of the state's own Guard. In Los Angeles, Chicago and Portland, the President overrode the governor. That is the situation the courts have rejected.
What it cost. The Congressional Budget Office estimated in January 2026 that the deployments cost about $496 million from June through December 2025, and would cost about $93 million a month if continued.
What did the friends of the court argue?
The Supreme Court heard from a wide range of voices in Trump v. Illinois. Three briefs stand out:
Former Army and Navy Secretaries and retired four-star admirals and generals argued that the Posse Comitatus Act bars the military from acting as a police force, that Guard members are not trained for civilian law enforcement among protesters, and that using troops this way risks politicizing the military and eroding public trust in it.
Twenty-four former federal judges traced the history from the Militia Act of 1792, which required a federal judge to certify that the laws could not be enforced by ordinary means before the President could call out the militia. They argued that Congress has never given the President open-ended power to deploy troops at home, and that courts have always had a role in checking it.
Biazzo Law's Government Oversight Program. On November 3, 2025, Corey J. Biazzo, Esq. filed an amicus curiae brief supporting Illinois and the City of Chicago and urging the Court to deny the stay. The brief argued that § 12406's conditions were not met; that under Justice Jackson's Youngstown framework, the President acted at the "lowest ebb" of his power; that the Posse Comitatus Act and the Tenth Amendment limit domestic military policing and sending one state's Guard into another state; and that the Founders' distrust of peacetime standing armies, a grievance listed in the Declaration of Independence, reinforces those limits.
The Court denied the stay, and its reasoning turned in part on the Posse Comitatus Act, a point our brief emphasized. To be precise: an amicus brief does not represent any party, and the Court did not state that it adopted any argument in our brief.
Official Supreme Court docket, No. 25A443: supremecourt.gov/docket/docketfiles/html/public/25A443.html
Read our filed brief: Brief Amicus Curiae of Corey J. Biazzo, Esq.
The law in plain English
Four sources of law decide when troops may be used at home. Each one is a choice Congress or the Framers made, and Congress can revisit the statutes.
The Constitution: Congress holds the calling-forth power
Article I, Section 8, Clauses 15 and 16 give Congress, not the President, the power "to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions," and to organize and govern the militia when it is in federal service. The President is Commander in Chief of the militia only "when called into the actual Service of the United States" (Article II, Section 2). The Tenth Amendment reserves to the states the powers not delegated, and the Guard is, by default, a state force commanded by its governor. The Declaration of Independence listed among King George III's offenses that he "kept among us, in times of peace, Standing Armies without the Consent of our legislatures" and "affected to render the Military independent of and superior to the Civil power."
10 U.S.C. § 12406: the statute the administration actually used
This law lets the President call a state's Guard into federal service only if (1) the country is invaded or in danger of invasion by a foreign nation, (2) there is a rebellion or danger of rebellion against federal authority, or (3) the President "is unable with the regular forces to execute the laws of the United States." Orders "shall be issued through the governors." The Supreme Court said in December 2025 that "regular forces" most likely means the regular military, so condition (3) generally requires a situation where the President could lawfully use the military to enforce the law in the first place. The Ninth Circuit's October 2026 decision applied similar reasoning to California.
The Posse Comitatus Act, 18 U.S.C. § 1385
Passed in 1878, the Act makes it a federal crime to willfully use the armed forces "as a posse comitatus or otherwise to execute the laws," except where the Constitution or an Act of Congress expressly authorizes it. In practice, it means soldiers may not act as police: no arrests, searches, crowd control or traffic stops directed at civilians, absent an express exception. It covers federalized Guard troops. It does not cover Guard members serving under their governor's command, which is why governor-consented deployments raise different questions. Judge Breyer found on September 2, 2025 that troops in Los Angeles had performed law-enforcement functions in violation of the Act.
The Insurrection Act, 10 U.S.C. §§ 251–255
This is the main express exception to the Posse Comitatus Act. It allows the President to use troops to suppress an insurrection, either at a state's request or, in narrower circumstances, without one, after first issuing a proclamation ordering insurgents to disperse. It has been invoked about 30 times, most recently during the 1992 Los Angeles riots at California's request. The administration did not invoke it in California or Illinois; it relied on § 12406 instead. The Insurrection Act's broad, vague terms are a common target of bipartisan reform proposals.
Youngstown: when the President acts against Congress
In Youngstown Sheet & Tube Co. v. Sawyer (1952), Justice Jackson explained that presidential power is strongest when backed by Congress and at its "lowest ebb" when the President acts against Congress's expressed will. When Congress has written specific conditions into § 12406 and a criminal ban into the Posse Comitatus Act, a deployment that ignores those conditions falls in that weakest category.
The other side, fairly stated
A fair analysis has to take the government's position seriously. These are its strongest points:
Federal officers and buildings need protection. ICE and other federal personnel faced real confrontations, property damage and threats in Los Angeles, Broadview and Portland. The federal government has an inherent interest in protecting its own employees and facilities, and courts have recognized a "protective power" that does not count as executing the laws.
Deference on fast-moving facts. The President must sometimes act before the facts are clear, and courts are poorly placed to second-guess real-time security judgments. Judge Bennett's dissent in the Ninth Circuit pressed this point, as did the Ninth Circuit's June 2025 stay order, which found the President's initial determination likely within his authority.
The statute uses the word "unable." The government argued that if local police would not protect federal officers, the President was "unable" to execute federal law with the forces he had.
Elections cut both ways. Supporters point out that voters chose this President, and that a future President of the other party could use the same powers. That is exactly why clear rules matter.
Where these arguments run into trouble is the text and history Congress wrote. The Supreme Court majority read "regular forces" as the regular military, which made the government's interpretation of "unable" much harder to sustain, and the record in Illinois and Oregon showed that protests near federal facilities were largely handled by civilian law enforcement. Genuine protective needs can usually be met with federal civilian officers such as U.S. Marshals, the Federal Protective Service, and additional DHS personnel, or with Guard troops a governor agrees to provide. Nothing in this analysis questions the good faith or service of the Guard members themselves, who followed orders they were given.
What a new Congress can do after January 3, 2027
Courts can only decide the cases in front of them, one deployment at a time and usually after the troops have already arrived. Congress wrote § 12406, the Posse Comitatus Act and the Insurrection Act, and only Congress can rewrite them. The Congress elected on November 3, 2026 will be seated on January 3, 2027. Whichever party holds the majority, it has the tools below. None of them requires anyone to agree on immigration policy.
1. Find out what actually happened
Hearings in the Armed Services, Judiciary, Homeland Security and Oversight committees, with testimony from the Defense Secretary, the National Guard Bureau, governors and the commanders on the ground.
Subpoenas for the federalization orders, legal opinions, rules of engagement, and communications about how cities were chosen.
Independent reviews by the Government Accountability Office and the Department of Defense Inspector General of who authorized law-enforcement tasks that a federal court found violated the Posse Comitatus Act.
Full cost accounting. The Congressional Budget Office estimated about $496 million through early December 2025, roughly $93 million a month. Congress can require an exact figure, and an account of what readiness and missions were lost while troops were away from home.
2. Rewrite the rules so they are clear in advance
Amend § 12406 to define "rebellion" and "unable with the regular forces," require written findings, set time limits, and require a governor's consent (or a later vote of Congress) before one state's Guard is sent into another state.
Reform the Insurrection Act with clear triggers, a short time limit, regular reports to Congress, and automatic expiration unless Congress votes to continue. Reform of this law has drawn interest from members of both parties for years.
Strengthen the Posse Comitatus Act by adding reporting requirements, an expedited judicial review path, and a civil enforcement mechanism. It has been a criminal law for nearly 150 years without a single successful prosecution, which makes it a weak deterrent on its own.
3. Use the power of the purse
The Appropriations Clause means no money leaves the Treasury unless Congress approves it. Congress can attach conditions to defense spending and the annual National Defense Authorization Act, such as barring funds for federalized Guard deployments that do not meet clear statutory standards.
4. Preserve the record
Committees can send preservation letters so that orders, messages and after-action reports are not lost. A complete record lets future Congresses, courts and voters judge what happened on facts, not talking points.
The honest limits
Any new law must survive a presidential veto, which takes a two-thirds vote of both chambers to override. The administration may resist subpoenas with claims of executive privilege, leading to slow court fights. Congress cannot prosecute anyone; that belongs to the Justice Department. And a narrowly divided Congress may struggle to pass anything. But hearings, subpoenas, GAO reviews, preservation letters and funding conditions in must-pass bills do not need a veto-proof majority, and they are how Congress has historically restored the balance after periods of executive overreach, from the Church Committee in the 1970s to the War Powers Resolution of 1973.
Why every American should care
The power will pass to the next President. Whatever authority one President claims to send troops into a city over a governor's objection, the next President of the other party can claim too, in your state, against your governor. Rules about the military should not depend on who is in office.
Your state's Guard belongs to your state first. Guard members are your neighbors, firefighters' backup and disaster responders. When they are federalized and sent away for months, they are not available for floods, wildfires and hurricanes at home, and their civilian employers and families carry the cost.
A professional military depends on staying out of politics. America's armed forces are among the most trusted institutions in the country because they serve the Constitution, not a party. Former service secretaries and retired four-star officers warned the Supreme Court that using troops as police at politically charged protests puts that trust at risk.
Civil liberties. Soldiers are trained to defeat enemies; police are trained to protect the rights of the people they encounter. The Posse Comitatus Act exists so that Americans exercising their First Amendment rights are policed by accountable civilian officers, not troops.
Taxpayer money. Hundreds of millions of dollars were spent on deployments that courts later found likely unlawful, money Congress never specifically approved for that purpose.
The separation of powers protects all of us. The Framers gave Congress the calling-forth power because they had lived under a king who quartered troops among them. Checks and balances only work if each branch uses them, regardless of which party is in charge.
Country over Party. Patriot over Partisan. You do not need to agree on immigration, crime or any other policy to agree that the military should be used only within the law.
Frequently asked questions
What is the Posse Comitatus Act? A federal law from 1878, 18 U.S.C. § 1385, that makes it a crime to use the armed forces to enforce civilian law unless the Constitution or an Act of Congress expressly allows it. It applies to federalized National Guard troops.
Can the President send the National Guard into a state over the governor's objection? Only in narrow circumstances Congress has defined. Under 10 U.S.C. § 12406, the President must face an invasion, a rebellion, or be unable to execute federal law with the regular military. The Supreme Court found in December 2025 that Illinois was likely to show those conditions were not met in Chicago.
What did the Supreme Court decide in Trump v. Illinois? On December 23, 2025, the Court denied the administration's request to stay the lower-court order blocking the Chicago deployment, finding the government had not shown that § 12406 authorized it. The case number is 25A443.
What happened in California? The President federalized about 4,000 California Guard members and sent roughly 700 Marines to Los Angeles in June 2025 over Governor Newsom's objection. A district court found in September 2025 that troops had violated the Posse Comitatus Act, and on October 23, 2026 the Ninth Circuit ruled against the federal government on the core § 12406 question.
Is the Insurrection Act the same thing? No. The Insurrection Act is a separate law and a recognized exception to the Posse Comitatus Act. It was not invoked in California or Illinois.
Did Biazzo Law file a brief? Yes. On November 3, 2025, Corey J. Biazzo, Esq. filed an amicus curiae brief through the Government Oversight Program supporting Illinois and Chicago. It is on the Supreme Court's docket, No. 25A443.
What can Congress do? Hold hearings, issue subpoenas, request GAO and Inspector General reviews, demand cost accounting, amend § 12406 and the Insurrection Act, strengthen the Posse Comitatus Act, and condition defense funding. The Congress elected in 2026 is seated January 3, 2027.
Is this a partisan issue? It should not be. The same powers are available to every President of every party. Clear limits protect everyone.
Stay informed and get involved
The Biazzo Law Government Oversight Program files amicus briefs, pursues Freedom of Information Act litigation, and publishes plain-English analysis so that every American, regardless of party, can hold every branch of government to the Constitution. Follow the program, share this analysis, and ask every candidate for Congress one question: will you use Congress's constitutional powers to check any President who exceeds the law, including one from your own party?
Country over Party. Patriot over Partisan.
Related reading from Biazzo Law
Sources
Trump v. Illinois, No. 25A443, Supreme Court docket and order denying stay (Dec. 23, 2025): supremecourt.gov
Brief Amicus Curiae of Corey J. Biazzo, Esq. (Nov. 3, 2025): PDF
Newsom v. Trump, No. 25-3727 (9th Cir. Oct. 23, 2026), opinion; order granting stay pending appeal (9th Cir. June 19, 2025)
Newsom v. Trump, No. 3:25-cv-04870 (N.D. Cal.), temporary restraining order (June 12, 2025) and Posse Comitatus findings (Sept. 2, 2025)
Illinois v. Trump (N.D. Ill. Oct. 9, 2025) and the Seventh Circuit's Oct. 16, 2025 order
Briefs amici curiae of former service secretaries and retired senior military officers, and of 24 former federal judges, No. 25A443
Congressional Budget Office, estimated costs of National Guard deployments (2025)
U.S. Constitution, Art. I, § 8; Art. II, § 2; Amend. X · Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
This article is for general informational and educational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. Biazzo Law, PLLC filed its amicus brief as a friend of the court and did not represent any party in these cases. Litigation described here may still be ongoing, and developments after the publication date may change the analysis. Attorney advertising.
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