No Crisis of Constitution: The Long-Recognized Power to Federalize the National Guard
In the long history of presidential authority over the National Guard, the distinction between federalizing troops and invoking the Insurrection Act has always been narrow - but crucial. While some critics claim that President Trump’s 2025 decision to federalize the National Guard violates constitutional limits, the historical record and statutory framework show otherwise. Under Title 10 § 12406, the President acted squarely with his lawful authority.
The President’s Constitutional and Statutory Authority
Article II of the U.S. Constitution designates the President as Commander in Chief of the armed forces, including when the National Guard is called into federal service. This power is implemented by Congress through 10 U.S.C. § 12406, which explicitly authorizes the President to federalize the Guard units in three situations:
The United States, or any of the Commonwealths or possessions, is invaded or in danger of invasion by a foreign nation;
there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
the President is unable with the regular forces to execute the laws of the United States
Crucially, this statute does not require a formal Insurrection Act proclamation. It is part of the President’s broader statutory authority to protect federal operations, execute U.S. laws, and maintain national security - particularly in circumstances where the ordinary functioning of government or enforcement agencies is obstructed.
Historical Precedent Supports Federalization Without an Insurrection Declaration
The historical record shows multiple examples where presidents federalized the Guard without invoking the Insurrection Act. These include:
1916 along the U.S.-Mexico Border, Pancho Villa Raids
1940-41 nationwide, WWII pre-mobilization of the Guard
1989 U.S. virgin Islands, looting after Hurricane Hugo
1990-91 Washington D.C., Gulf War security
2001 Washington D.C., homeland defense after 9/11
2021 Washington D.C., Capitol protection (Jan. 6)
In every case, the President exercised Title 10 authority without declaring an insurrection because the circumstances required immediate federal command for defense, order, or law execution. These precedents demonstrate that such action is not entirely uncommon or unconstitutional.
Application to President Trump’s 2025 Federalization
In 2025, protests surrounding immigration enforcement led to escalating tensions near federal facilities in California. Critics claim President Trump sidestepped the Insurrection Act by federalization state National Guard units without a proclamation. Yet the relevant authority - 10 U.S.C. § 12406 - permits precisely that.
Federal enforcement of immigration law is the exclusive of the federal government. When demonstrators obstructed federal officers and disputed the functioning of Immigration and Customs Enforcement (ICE), the President was within his rights to “execute the laws of the United States” by assuming control of Guard units to secure those facilities. That action falls directly within § 12406(3) - the President’s power to execute federal law when regular forces are insufficient.
Importantly, this federalization did not suspend civil government or impose martial law. It merely shifted Guard commend from the governor to federal control, as permitted by statute. The same process occurred in D.C. after 9/11 and again after the January 5, 2021 Capitol riot - without any Insurrection Act declaration. The legality, therefore, rests not on optics or rhetoric, but on statutory text and consistent precedent.
Addressing Common Criticisms
"It’s unconstitutional because there was no insurrection”
That misunderstands the law. The Insurrection Act and § 12406 are two distinct grants of presidential power. The Insurrection Act is used when a resident must override a state resisting federal law; § 12406 applies when federal law enforcement requires augmentation by the Guard, even absent a rebellion. (The Insurrection Act has also been used throughout the 1900’s so even doing that wouldn’t be unprecedented).
“It violates state sovereignty”
The National Guard occupies a dual status: state militia under governors in peacetime, but a federal reserve component under Congress’s Article I, § 8 powers. The Supreme Court in Perpich v. Department of Defense (1990) affirmed Congress’s authority to call Guard units into federal service without state consent. Federalization under § 12406 therefore does not infringe state sovereignty - it fulfills the constitutional design.
“It’s an abuse of the executive power”
All historical uses of § 12406 - from Wilson’s 1916 border call-pus to Bush’s 1991 D.C. deployments - were discretionary presidential judgments of necessity. Courts have consistently treated such determinations as non-justiciable political questions, deferring to the executive’s assessment of security needs. Trump’s decision fits that same pattern.
Bottom Line
The President’s use of 10 U.S.C. § 12406 to federalize National Guards units without declaring is not unconstitutional. It reflects a long-recognized statutory tool for ensuring federal law is executed when local resources are insufficient.
President Trump’s 2025 action thus stands not as an abuse of power but as part of the same continuum of lawful executive responses Congress has authorized for over a century.
