Troops in U.S. Cities: A 120th Congress Oversight Plan

Corey J. Biazzo, Esq.

58 minutes ago

22 min read

Troops on American Streets: A Lawful Investigative and Legislative Plan for the 120th Congress

By Corey J. Biazzo, Esq., Biazzo Law, PLLC — Biazzo Law Government Oversight Program. Country over Party. Patriot over Partisan.

In short: In 2025, National Guard troops, and in Los Angeles active-duty Marines, were federalized and sent into American cities over the objections of their governors. On December 23, 2025, the Supreme Court refused to let the deployment in Illinois go forward. It held that the government had likely not shown legal authority under 10 U.S.C. § 12406. The troops were withdrawn, and in April 2026 a federal judge dismissed Illinois's lawsuit as moot. That means no court will finish the Illinois factual record. In California, the Ninth Circuit held on October 23, 2026 that the Los Angeles call-up was unlawful and "encroached on Congress's calling forth power." The President also said the Guard could "come back, perhaps in a much different and stronger form." This guide gives members of the 120th Congress, of both parties, a lawful plan to build the record, preserve the evidence, compel testimony and documents with a valid legislative purpose, work with affected states, and pass laws so this does not happen again.

Key facts at a glance

Item	What the record shows
Case	Trump v. Illinois, No. 25A443, 607 U.S. ___, 146 S. Ct. 432 (Dec. 23, 2025) (stay denied); district case Illinois v. Trump, No. 1:25-cv-12174 (N.D. Ill.)
Statute relied on	10 U.S.C. § 12406(3): the President is "unable with the regular forces to execute the laws"
Supreme Court's reading	"Regular forces" likely means the regular U.S. military, which ordinarily cannot execute the laws because of the Posse Comitatus Act, 18 U.S.C. § 1385
Troops involved in Illinois	About 300 Illinois Guard members federalized October 4, 2025; Texas Guard members federalized October 5 and sent to Illinois; Texas and California Guard personnel arrived October 7
District court findings	The court found the government's declarations from its witnesses with firsthand knowledge contained "unreliable" information; state and local police had handled protests at the Broadview ICE facility
The vote	Stay denied; Justice Kavanaugh concurred in the judgment; Justices Alito, Thomas, and Gorsuch dissented
What happened next	Withdrawal from Chicago, Los Angeles, and Portland announced December 31, 2025; Illinois case dismissed as moot April 20, 2026; Ninth Circuit held the California call-up unlawful October 23, 2026
Cost	The Congressional Budget Office estimated the 2025 city deployments cost about $496 million
Why Congress	No final court judgment resolves the law. Article I, Section 8 gives Congress the power over calling forth and regulating the militia

What happened in Illinois, and what did the courts decide?

The Illinois deployment grew out of immigration enforcement and protest, not invasion or rebellion. The briefs filed in the Supreme Court describe the facts below. The parties disputed many of them, so this summary says who said what.

September 8, 2025: The Department of Homeland Security announced "Operation Midway Blitz," an immigration enforcement surge in the Chicago area.
Fall 2025: Protests grew at the ICE processing facility in Broadview, Illinois. The government said federal officers were obstructed, threatened, and assaulted, and federal property was damaged. Illinois said the crowds were mostly small and peaceful, and that Broadview police and the Illinois State Police answered every federal request for help.
September 26, 2025: DHS asked the Department of Defense for 100 personnel to help with facility protection, access control, and crowd control. Illinois's brief says that request was not acted on.
October 2–3, 2025: State and local agencies formed a Unified Command at Broadview, set protest areas, and kept an access lane open. Illinois's brief quotes an ICE on-site manager praising that effort.
October 4, 2025: The National Guard Bureau gave Illinois two hours to deploy its Guard in federally funded "Title 32" status. The Governor declined. The President then called about 300 Illinois Guard members into federal service under 10 U.S.C. § 12406.
October 5–7, 2025: Texas Guard members were federalized for use in Illinois. Texas and California Guard personnel arrived October 7.
October 9–10, 2025: Judge April Perry of the Northern District of Illinois entered a 14-day temporary restraining order. She found no rebellion. She also found that the government's three firsthand declarations contained "unreliable" information. One example: declarants described protest arrests but left out that grand juries had declined to indict.
October 16, 2025: The Seventh Circuit let the Guard stay federalized but kept the ban on deployment.
December 23, 2025: The Supreme Court denied the government's stay application.

What the Supreme Court held, and what it did not. The Court said the term "regular forces" in § 12406(3) "likely refers to the regular forces of the United States military." Under that reading, the President must be unable to execute the laws with the regular military first. And the military can execute the laws only where the Constitution or an Act of Congress expressly allows it, because of the Posse Comitatus Act. The Court found the government had not identified such authority "at this preliminary stage." It also said it was not deciding how far courts may review a President's findings under the statute.

The ruling was narrow and interim. Justice Kavanaugh agreed with the result but would have ruled on narrower grounds. He warned that the Court's reasoning might affect a true emergency, like a mob threatening a federal courthouse. He also noted the ruling did not address the Insurrection Act or the President's asserted power to use the regular military to protect federal property. Justice Alito, joined by Justice Thomas, dissented. He argued that the Court had decided the case on an argument the parties waived. Justice Gorsuch dissented and listed open questions, including one "graver" question: when, if ever, the professional military may be used for domestic law enforcement.

Why that leaves the job to Congress. After the ruling, the President announced on December 31, 2025, that the Guard would leave Chicago, Los Angeles, and Portland. In April 2026 the Illinois case was dismissed as moot because the troops were gone. So there is no final judgment, no full trial record, and many unanswered legal questions. Justice Gorsuch's list of questions reads like a to-do list for Congress. For more on the California and Oregon cases, see our companion post, National Guard in U.S. Cities: What Courts Ruled and Congress Can Do. The author's own amicus brief is discussed in Defending the Constitution: My Supreme Court Brief on Presidential Overreach in Illinois.

What happened in California, and what did the Ninth Circuit decide?

The California case, Newsom v. Trump, No. 3:25-cv-04870-CRB (N.D. Cal.), No. 25-3727 (9th Cir.), came first. It now has the most complete appellate ruling on these questions.

June 6–7, 2025: Federal immigration operations in Los Angeles set off protests, some of them violent. State and local police responded. On June 7, the President invoked § 12406, and only that statute, to call at least 2,000 California Guard members into federal service for 60 days. The Secretary of Defense's order went to California's Adjutant General. The complaint says the Governor learned of it only afterward.
June 9, 2025: A second order federalized 2,000 more California Guard members, for 4,000 in total. About 700 active-duty Marines from Camp Pendleton were also sent to Los Angeles. California sued the same day.
June 12, 2025: Judge Charles Breyer granted a temporary restraining order. He found the President had likely exceeded his authority under § 12406 and violated the Tenth Amendment, and he ordered control of the Guard returned to the Governor. That evening, the Ninth Circuit issued a temporary administrative stay.
June 19, 2025: A Ninth Circuit panel (Judges Bennett, Miller, and Sung) stayed the order pending appeal. It held that a President's decision under § 12406 is reviewable in court, but only under a "highly deferential" standard. At that stage it found the President likely acted within § 12406(3).
September 2, 2025: After a bench trial, Judge Breyer found that the Los Angeles deployment violated the Posse Comitatus Act. He permanently barred using the deployed troops to execute the laws. Newsom v. Trump, 797 F. Supp. 3d 1092 (N.D. Cal. 2025). That ruling is on separate appeal.
December 10, 2025: Judge Breyer preliminarily enjoined the orders extending the federalization. Troops were off Los Angeles streets by December 15.
October 23, 2026: With the benefit of Trump v. Illinois, the same panel affirmed the June 12 order, 2–1.

What the 2026 Ninth Circuit opinion holds. Judge Sung wrote the opinion. It holds that "[t]he President's power to 'call forth' members of a state's National Guard is statutory, not constitutional." The Constitution gives the calling-forth power to Congress, and Congress has delegated only part of it. Applying Trump v. Illinois, the panel found the government had not shown authority to execute the laws with the regular military, or that it was unable to do so. It also held that Los Angeles on June 7, 2025 was not a "rebellion or danger of a rebellion" under § 12406(2). The court said that conclusion did not reflect "a colorable assessment" within a "range of honest judgment." Because no part of § 12406 authorized the order, the panel held that it "encroached on Congress's calling forth power, in violation of the constitutional separation of powers."

Judge Miller concurred. Judge Bennett dissented. He would have dismissed the appeal. He also argued that the majority reached hard questions on thin briefing about Trump v. Illinois, and that the Tenth Amendment claim was unlikely to succeed.

Why California matters to Congress. The Ninth Circuit put the problem in Congress's own terms: an unlawful call-up takes power that belongs to Congress. Two parts of the record deserve a close look. First, the orders went to the Adjutant General rather than through the Governor, even though § 12406 says orders "shall be issued through the governors." Second, active-duty Marines were deployed alongside the Guard. Both point to reforms 4, 7, and 8 below. Other parts of the California case remain on appeal, so courts may still revise these rulings.

Why does this matter to every American, not just one party?

Americans have resisted soldiers policing civilians since before the country existed. The Declaration of Independence listed it among the reasons for separating from the Crown:

"He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures."
"He has affected to render the Military independent of and superior to the Civil power."
"For quartering large bodies of armed troops among us"
"For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States"

The Framers answered those grievances with structure. Article I gives 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" (Art. I, § 8, cl. 15). It reserves to the states the appointment of Guard officers and the training of the militia (cl. 16). No Army appropriation may run longer than two years (cl. 12). The Third Amendment limits quartering soldiers in homes.

Alexander Hamilton explained why in The Federalist No. 26. The two-year limit on Army funding means that "[t]he legislature of the United States will be OBLIGED, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot." Congress may not hand the executive permanent funding for an army. Hamilton also counted on the states to stand watch. He called state legislatures "vigilant but suspicious and jealous guardians" of the people's rights, "ready enough, if any thing improper appears, to sound the alarm to the people." He expected that "the spirit of party" would affect every political body. He saw that as one more reason Congress, and not one official, must decide when military force is used. The 2025 deployments put both of Hamilton's safeguards to the test: Congress's control of the purse and the military, and the states as the first to raise the alarm. This plan relies on both.

The first Congress kept that check tight. Congress passed the Calling Forth Act of 1792 with 19 former Constitutional Convention delegates among its members. Under that Act, the President could call out a state's militia to execute the laws only after a Supreme Court justice or a federal district judge notified him that the courts and marshals could not handle the problem. In 1878, Congress passed the Posse Comitatus Act, which makes it a crime to willfully use the Army, Navy, Marine Corps, Air Force, or Space Force "as a posse comitatus or otherwise to execute the laws," unless the Constitution or an Act of Congress expressly allows it (18 U.S.C. § 1385). The Supreme Court has described a "traditional and strong resistance of Americans to any military intrusion into civilian affairs." Laird v. Tatum, 408 U.S. 1, 15 (1972).

The point is not partisan. The same rule protects every community, whoever holds power. Briefs urging limits came from former secretaries of the Army and Navy and retired four-star officers who served under presidents from Kennedy to Obama. Twenty-four former federal judges appointed by presidents of both parties filed briefs too. Those military leaders warned of four risks when troops police civilians:

It pulls the Guard away from its war-fighting and disaster missions.
Troops are not trained for domestic law enforcement, which endangers them and the public.
It pulls an apolitical military into politics, which hurts trust, recruiting, and morale.
It can chill protest that the First Amendment protects.

The men and women of the Guard did their duty and followed orders. This plan is about the decisions made above them, not about them.

What laws govern troops at home?

Four statutes and one asserted constitutional power control almost every domestic deployment. Each has gaps that the 2025 deployments exposed.

Authority	What it allows	Gap the 2025 record exposed
10 U.S.C. § 12406	Federalizing the Guard for invasion, rebellion, or when the President is "unable with the regular forces to execute the laws"; orders go "through the governors"	No definitions, time limit, report to Congress, or rule on sending one state's Guard into another state over that governor's objection
Posse Comitatus Act, 18 U.S.C. § 1385; 10 U.S.C. § 275	Bars the military from executing the laws unless expressly authorized; § 275 limits direct military help with searches, seizures, and arrests	A criminal statute rarely enforced; no civil remedy; disputes over whether "protective" duties count as law enforcement
Insurrection Act, 10 U.S.C. §§ 251–255	Using the military or federalized Guard for insurrection or obstruction of the laws, after a proclamation to disperse (§ 254)	Broad triggers, no time limit, no congressional approval, little judicial guidance; last invoked in 1992
32 U.S.C. § 502(f)	Guard stays under the governor but is federally funded for a federal mission	Pressure on governors (Illinois got a two-hour deadline); disputes over whether a governor of another state can send troops into a non-consenting state
Asserted "protective power" (Article II)	The executive branch has long claimed inherent power to protect federal personnel and property (see 1 Supp. Op. O.L.C. 343 (1971))	Never defined by statute; Justice Kavanaugh noted it as a possible path around § 12406

History Congress can build on. Congress has changed these laws before, on a bipartisan basis. In 2006 Congress broadened the Insurrection Act. In 2008, after governors of both parties objected, it repealed most of that expansion. Narrowing these laws after real-world experience is not new.

Where does Congress get the power to investigate, and what is the legislative purpose?

Congress may compel testimony and documents when the inquiry relates to a subject on which it could legislate. McGrain v. Daugherty, 273 U.S. 135 (1927); Watkins v. United States, 354 U.S. 178 (1957); Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975). Here, the Constitution itself names the subject: calling forth and regulating the militia, and making rules for the armed forces. Every subpoena in this plan should say which bill or reform it informs.

Constitutional source	Legislative question	Records and witnesses it supports
Art. I, § 8, cl. 15 (calling forth the militia)	Should § 12406 define "rebellion" and "unable with the regular forces," require written findings, or set time limits?	Presidential memoranda, findings, threat assessments, legal opinions relied on
Art. I, § 8, cl. 16 (organizing the militia; officers and training reserved to states)	Should one state's Guard be sent into another state without that governor's consent?	Texas and California orders, interstate communications, National Guard Bureau memos to Illinois
Art. I, § 8, cl. 14 (rules for the armed forces)	Do the Posse Comitatus Act and rules for the use of force need civil remedies, reporting, or new training standards?	Rules for the use of force, mission orders, training records, legal reviews
Art. I, § 8, cl. 12 and Art. I, § 9, cl. 7 (appropriations)	Should funds be conditioned or barred for deployments that do not meet the statute?	Cost data, funding sources, transfers and reprogramming
Art. I, § 8, cl. 18 (necessary and proper)	Should the Insurrection Act gain triggers, deadlines, and congressional approval?	Planning documents for invoking the Act, quick reaction force orders
Fourteenth Amendment, § 5; First Amendment	Do service members and federal officers need clearer rules for protests and the press?	Use-of-force reports, video and photographs, complaints

Drafting tips for a valid purpose. Write the purpose into the committee's authorizing resolution and each subpoena cover letter. Tie each request to a named reform. Ask for official records first, then personal devices used for official business. Keep requests about decisions and policies, not about individual service members or protesters. Trump v. Mazars USA, LLP, 591 U.S. 848 (2020), set extra tests for subpoenas seeking a President's personal papers. Most records here are official, but a careful committee will explain why it needs each one. For enforcement steps when an agency refuses, see our congressional subpoena playbook.

What does a lawful investigative plan look like?

The plan runs in five phases. Each one produces a record that a court, the public, and the next Congress can rely on.

Committees with jurisdiction. House and Senate Armed Services cover the Guard, Title 10, and rules for the armed forces. House and Senate Judiciary cover the Posse Comitatus Act and the Insurrection Act. House Homeland Security and Senate Homeland Security and Governmental Affairs cover DHS and ICE. House Oversight covers government-wide conduct. Defense and Homeland Security appropriations subcommittees cover cost and funding. A joint or select committee is an option if leaders want one body to hold the record.

Phase 1, Days 1–30: Organize and preserve. Adopt committee rules and a resolution stating the legislative purpose. Send preservation letters (next section). Request the public court records from Illinois, California, Oregon, and D.C. Ask GAO, the Department of Defense Inspector General, and the DHS Inspector General to open reviews. Ask CBO to update its cost estimate.
Phase 2, Days 30–90: Voluntary requests. Send document requests to agencies with a deadline. Invite voluntary transcribed interviews. Invite governors, adjutants general, state police, and mayors to share records and testify. Open a secure channel for whistleblowers (see Guardrails).
Phase 3, Days 60–150: Compulsory process. Issue subpoenas only where requests were refused or ignored, each tied to a named reform. Log every claim of privilege. Negotiate accommodations in writing, as courts expect.
Phase 4, Days 90–180: Public hearings. Hold hearings in order: state and local officials and independent experts, then military leaders, then senior civilian officials. Consider a field hearing in an affected city. Release a staff report with exhibits.
Phase 5, Day 180 on: Legislate and follow up. Mark up reforms. Attach conditions in the NDAA and appropriations bills. Refer any evidence of possible crimes to the proper authorities without prejudging guilt. Track compliance.

For a deeper witness-and-evidence model, see our investigative plan guide and our parallel plan for investigating immigration enforcement violence. Some records will overlap, so the two inquiries should coordinate.

How should Congress preserve the evidence?

Send preservation letters first, because the lawsuits ended without full discovery and routine retention schedules may already be running. Letters should go to:

the Department of Defense and the Army, the National Guard Bureau, and U.S. Northern Command;
DHS, ICE, Customs and Border Protection, and the Federal Protective Service;
the Department of Justice, including the Office of Legal Counsel;
the White House Counsel and the Archivist of the United States, under the Presidential Records Act (44 U.S.C. § 2201 et seq.) and the Federal Records Act (44 U.S.C. ch. 31).

Each letter should cover email, texts, messaging apps (including disappearing-message apps), body-worn and vehicle camera footage, drone and aerial video, photos, radio logs, and personal devices used for official business. It should state that deleting covered records may violate federal records laws and may obstruct a congressional inquiry. It should ask for a written confirmation within 14 days.

Ask states and cities to preserve their records too: Illinois State Police and Broadview police records, Unified Command logs, 911 and dispatch audio, and governors' communications with federal officials.

What documents and witnesses should Congress seek?

Priority documents

Record	Why it matters	Reform it informs
June 7, 2025 presidential memorandum on protecting DHS functions, and the October 4, 2025 Illinois memorandum	The stated legal basis and scope of the missions	§ 12406 definitions and findings
Secretary of Defense memoranda of October 4–5, 2025 (Illinois and Texas Guard)	Who ordered cross-state deployment and why	Governor consent for cross-state use
National Guard Bureau memo giving Illinois two hours to accept Title 32 status	Whether governors were pressured	32 U.S.C. § 502(f) consent rule
DHS's September 26, 2025 request for 100 Defense personnel for "crowd control"	Whether troops were sought for law enforcement tasks	Posse Comitatus Act clarity
Threat assessments and intelligence relied on	Whether the facts supported the findings	Written-findings requirement
Legal opinions (DOJ, Defense, DHS)	What lawyers advised and when	Insurrection Act and § 12406 reform
Rules for the use of force, mission orders, training records	How troops were told to act	Use-of-force and training standards
Executive Order 14339 "quick reaction force" plans	Readiness for future domestic deployments	Reporting and approval rules
Cost and funding records	What taxpayers paid and from which accounts	Appropriations conditions
Video, photos, and use-of-force reports from Broadview and other sites	What actually happened on the ground	First Amendment and protest protections
Records behind the declarations filed in court	Why the court found them "unreliable"	Candor and certification rules

Witness sequence (by role, not by name)

Order	Witness	Purpose
1	Governors, adjutants general, state police leaders, mayors, and local police chiefs from affected states	What local officials saw and what help they gave
2	Independent experts and retired senior military leaders	History, readiness, and civil-military norms
3	National Guard Bureau, U.S. Northern Command, and Army leaders	Orders, training, rules for the use of force, cost
4	ICE, CBP, and Federal Protective Service field leaders	The threat picture and requests for help
5	Department of Justice and agency lawyers	Legal advice (expect privilege claims; see Guardrails)
6	Senior civilian officials at Defense and DHS	Decisions and their basis

When to subpoena. Use subpoenas after a written request is refused or ignored, not as a first step. Each subpoena should list the specific records, the time period, the legislative purpose, and the reform it informs. Expect executive privilege, deliberative-process, and attorney-client claims for White House and legal-advice records. Ask for a privilege log. Negotiate in writing. Keep the record of good-faith accommodation. Courts expect the branches to try to reach accommodation before they will step in.

What guardrails keep the investigation fair and keep people out of trouble?

A credible investigation protects the people who come forward and treats every witness fairly. It also keeps members and staff inside the rules.

Protect service members.

Focus on decisions and policies, not on rank-and-file Guard members who followed orders.
Do not publish the names, faces, or home states of junior service members.
Never urge a service member to disobey an order. Questions about the legality of orders belong in the chain of command, with military lawyers, with an inspector general, or with Congress.
Remind witnesses that the Military Whistleblower Protection Act, 10 U.S.C. § 1034, protects lawful communications with a member of Congress or an inspector general and bars retaliation for them.

Protect civilian whistleblowers. Federal employees who lawfully disclose wrongdoing to Congress are protected under 5 U.S.C. § 2302(b)(8)(C) and (b)(13). Classified information must go only through cleared channels, such as an inspector general or properly cleared committee staff. For the safe steps, see Whistleblowers and Congress: A Guide for Federal Employees.

Respect the Fifth Amendment. Any witness may invoke the privilege. Congress can compel testimony by granting use immunity (18 U.S.C. §§ 6002, 6005). But immunity can make a later prosecution very hard. That happened in United States v. North, 910 F.2d 843 (D.C. Cir. 1990), and United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991). Consult the Justice Department and weigh that trade-off before voting on immunity.

Keep members and staff inside the rules. The Speech or Debate Clause (Art. I, § 6) protects legislative acts like hearings and reports. It does not protect press releases or newsletters. Hutchinson v. Proxmire, 443 U.S. 111 (1979). Stick to the record and avoid declaring anyone guilty of a crime. Handle classified material only in approved spaces. Follow the committee's rules for releasing documents.

Protect privacy. Redact the personal information of protesters, bystanders, and service members in released video and documents. Apply the same standard to everyone.

Write general laws, not punishments. The Bill of Attainder Clause bars Congress from punishing named people by statute. United States v. Lovett, 328 U.S. 303 (1946). Reforms should set rules for every future President and deployment.

Treat every witness alike. Ask the same questions of officials of both parties and of state and federal officials. Include in the report any evidence that supports the deployment decisions. The goal is an accurate record, not a predetermined conclusion.

Watch the clock. House subpoenas expire when a Congress ends. Plan to finish, or reissue, before the 120th Congress adjourns.

How can Congress work with affected states and cities?

The states that faced these deployments hold much of the best evidence, and they are natural partners for reform. In Federalist No. 26, Hamilton expected state legislatures to "sound the alarm" when federal power was misused. In 2025, California and Illinois did that in court. Congress should work with them openly and on paper.

Use the court records. Illinois, California, Oregon, and the District of Columbia built sworn records in their lawsuits. Committees can request the full filings, declarations, exhibits, and transcripts, and ask the state attorneys general to identify sealed material they would agree to share.
Hear from state witnesses first. Governors, adjutants general, state police leaders, mayors, and police chiefs can testify voluntarily about what they saw, what help they gave federal officers, and what pressure they received. Illinois's brief describes a Unified Command at Broadview, an option that existed before troops were sent.
Sign records-sharing agreements. A short written agreement can set out what each state will share, how personal information is protected, and how the committee will handle it.
Hold joint or field hearings. A hearing in an affected city, with the state's congressional delegation of both parties, puts local voices on the record.
Coordinate on reform. Several states considered laws in 2026 on when their own Guard may be sent to another state or accept federal missions, including Virginia, Oregon, and Iowa. Congress can line up federal law with those efforts. The Emergency Management Assistance Compact, which Congress approved in 1996 (Pub. L. 104-321), already rests on the idea that interstate Guard help is requested by the receiving state.
Respect the limits. States cannot override valid federal orders. Perpich v. Department of Defense, 496 U.S. 334 (1990), upheld federal power over Guard members in federal service. The Supremacy Clause also limits state action against federal officers performing federal duties. In re Neagle, 135 U.S. 1 (1890). That makes clear federal law the most durable fix, and that is Congress's job.

Cities have a stake too. A coalition of local governments and local officials from across the country filed a brief describing harm to public safety, local economies, and residents' sense of security. Their police chiefs can explain why trained local officers, not soldiers, are better suited to manage protests.

What laws should the 120th Congress pass?

Good reform makes the rules clear before the next crisis, for every President of either party. It should also keep the government able to answer a real emergency. Justice Kavanaugh's example of a mob about to storm a federal courthouse is a fair test for any bill.

#	Reform	What it would do	Statute
1	Define the terms	State that "regular forces" means the regular armed forces; define "rebellion" and "unable"	10 U.S.C. § 12406
2	Written findings	Require the President to send Congress written findings within 48 hours, with a public unclassified version	§ 12406; Insurrection Act
3	Time limits	End a call-up after a set period, such as 30 days, unless Congress extends it by joint resolution under fast-track procedures	§ 12406; 10 U.S.C. §§ 251–255
4	Governor consent across state lines	Bar sending one state's Guard into another state without the receiving governor's consent, except for invasion or when state officials themselves obstruct federal court orders or civil rights	§ 12406; 32 U.S.C. § 502(f)
5	Short emergency window	Allow protective-only use for a few days to protect federal facilities from an imminent violent threat, with immediate notice to Congress	New section, title 10
6	Judicial review	Confirm that courts may review whether the statutory conditions are met, on an expedited schedule	§ 12406; Insurrection Act
7	Posse Comitatus clarity	Make clear the Act covers federalized Guard and Title 32 missions in non-consenting states; define "protective" duties; add a civil remedy for injunctive relief	18 U.S.C. § 1385; 10 U.S.C. § 275
8	Insurrection Act update	Narrow and define the triggers, require consultation with congressional leaders, set a time limit, and require reports	10 U.S.C. §§ 251–255
9	Use of force and training	Require published rules for the use of force, protest-specific training, visible unit identification, and body cameras where feasible for domestic missions	Title 10; NDAA
10	Records preservation	Require all records of domestic deployments to be preserved and sent to Congress on request	Federal Records Act; NDAA
11	Cost transparency	Require monthly cost reports to Congress and bar funds for deployments that fail the statute	Defense appropriations; NDAA
12	Quick reaction force oversight	Require reports on any standing domestic quick reaction force, its rules, and its legal basis	NDAA

Many 119th Congress bills on these topics will die when that Congress ends on January 3, 2027. Sponsors should reintroduce them early, ideally with cosponsors from both parties. The NDAA is a proven vehicle. For model bill language and veto-proof strategy, see Model Bills for the 120th Congress and Veto-Proof Reform Laws to Protect the Separation of Powers.

What does the other side argue?

A fair record includes the government's case, which deserves a serious answer.

Deference. The government and supporting amici argued that Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827), leaves the decision to call forth the Guard to the President.
Real violence. Federal officers did face assaults and threats in some protests, and protecting them is a legitimate duty.
Protective power. The executive branch has long said it may use troops to protect federal personnel and property without "executing the laws."
History. Supporters cite President Eisenhower's use of federalized Guard and the 101st Airborne in Little Rock in 1957 to enforce desegregation orders over state resistance.

The answer is a better statute, not no statute. Little Rock is the strongest example of why some federal power must remain: state officials were defying federal court orders, and Eisenhower acted under the Insurrection Act. Reform 4 above keeps that power. Reform 5 answers the courthouse hypothetical. The reforms take nothing from a President facing a true emergency. They require findings, time limits, and accountability to Congress and the courts.

Let's talk

If you are a member of the 120th Congress, a committee staffer, a state official, or a service member or civil servant with lawful information to share, we welcome the conversation. We can walk through this plan, help draft preservation letters and requests, and connect you with our model bills. Contact Biazzo Law or visit the Biazzo Law Government Oversight Program.

Companion resources

Frequently asked questions

Did the Supreme Court rule that the Chicago deployment was unconstitutional? No. On December 23, 2025, in Trump v. Illinois, the Court denied a stay. It held that the government likely lacked authority under 10 U.S.C. § 12406(3) because "regular forces" likely means the regular military. It was a preliminary, statutory ruling, not a final constitutional judgment.

What did the Ninth Circuit decide about the Los Angeles deployment? On October 23, 2026, in Newsom v. Trump, No. 25-3727, a divided panel affirmed the order returning the California Guard to the Governor. It held that neither § 12406(2) nor § 12406(3) authorized the June 2025 call-up, and that the order encroached on Congress's calling-forth power. A separate ruling that the deployment violated the Posse Comitatus Act is on appeal.

Why should Congress act if the troops already left? The case was dismissed as moot in April 2026, so the law is still unsettled and the facts were never fully tested. The President also said the Guard could return in a "stronger form." Only Congress can write clear rules ahead of time.

Can Congress subpoena military and White House records about the deployments? Yes, when the request serves a valid legislative purpose. Here, the Constitution gives Congress power over calling forth and regulating the militia and the armed forces. Expect privilege claims and negotiation for White House and legal-advice records.

Will this investigation target Guard members? It should not. A lawful plan focuses on decisions and policies. It protects junior service members' identities and protects lawful whistleblowing under 10 U.S.C. § 1034.

What is the Posse Comitatus Act? An 1878 federal law, 18 U.S.C. § 1385, that makes it a crime to willfully use the armed forces to execute the laws, unless the Constitution or an Act of Congress expressly allows it.

Can a state stop the President from federalizing its Guard? Not on its own when the President acts under a valid federal statute. Perpich v. Department of Defense, 496 U.S. 334 (1990). States can sue, share evidence with Congress, and pass laws within their own powers. Clear federal law is the lasting fix.

Is this a partisan issue? It should not be. The same limits protect every community under every President. Former military leaders and former federal judges appointed by presidents of both parties urged limits. The 2008 bipartisan repeal of the 2006 Insurrection Act expansion shows Congress can act together.

This post is for general information and public education. It is not legal advice, and reading it does not create an attorney-client relationship. It describes court rulings and filings as of the date shown and may not reflect later developments. The Biazzo Law Government Oversight Program is nonpartisan. It does not endorse or oppose any candidate or party. Service members and federal employees should get individual advice before disclosing information, and should never disclose classified information outside authorized channels.