When the National Guard shows up in American cities, it’s usually after hurricanes, fires, or floods, not in connection with political motives. But recent federal deployments have changed the landscape and raised pressing questions about how far a president’s domestic military powers can go. On a recent episode of Stanford Legal, podcast host Professor Pam Karlan sat down with Professor Bernadette Meyler, JD ’03, the Carl and Sheila Spaeth Professor of Law, to talk about about the growing use of the National Guard for domestic law enforcement and what it reveals about shifting boundaries of presidential power. 

Meyler is also an expert on presidential pardoning power and is the author of the book Theaters of Pardoning (Cornell University Press, 2019).

The following Q&A is an edited and shortened version of the full podcast transcript, which can be found here.

Pam Karlan: There’s a federal statute that allows the president to call National Guard units into federal service when the U.S. is invaded or threatened with invasion, facing rebellion, or when the president can’t execute the laws with regular forces. President Trump has been invoking this power in ways we haven’t really seen since the civil-rights era. You’ve been looking closely at this, including what’s happening now in California and Illinois. 

Bernadette Meyler: Part of the backdrop here is the Supreme Court’s recent presidential-immunity decision, which held that presidents are immune for their official acts. That ruling effectively gives Trump more room to exercise powers that might previously have been checked. There’s also a connection to the pardon power: the National Guard is being used to support ICE and immigration-enforcement operations, and if civil rights violations occur in the process, those involved could potentially be pardoned by the president. Given how broadly the pardon power is understood today, that possibility looms large.

Pam Karlan: Let’s start with the operations themselves. In Illinois, we have “Operation Midway Blitz,” and there’s a similar operation in Los Angeles. What were these initial ICE-led operations designed to do?

Bernadette Meyler: They were designed to ramp up immigration enforcement—targeting people the administration considers to have violated immigration laws or to be unlawfully present in the country. Portland has seen similar activity. And the rhetoric around these operations makes clear they’re aimed at Democratic-leaning cities viewed as “harboring” undocumented immigrants. The enforcement has been very clearly targeted at those urban areas.

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Pam Karlan: And unlike past ICE raids—say, at meat-packing plants—these are happening right in the middle of cities where many residents, including citizens fully entitled to be here, strongly object. You have demonstrations, whistle-blowing networks, people warning communities about ICE activity. And you also have local police forces in these cities, right?

Bernadette Meyler: Exactly. In California, local police said they were fully capable of handling any issues that arose. There was some violence in Los Angeles, but LAPD reported they were managing it. Governor Newsom also made clear that the state did not need National Guard assistance. That’s part of what makes the federal deployment so unusual. Generally, when the Guard is federalized, the governor consents. Here, President Trump deployed Guard units in Los Angeles without even notifying Governor Newsom.

Pam Karlan: Even though it’s called the National Guard, it’s usually under the command of each state’s governor. Historically—and this goes back to your work as a legal historian—the Guard is the successor to the early state militias, which were meant to remain under local control rather than operate as a national standing army.

Bernadette Meyler: Exactly. The militias that became the National Guard were fundamentally local bodies. That’s why the recent use of the Texas National Guard outside Texas is so striking. We’ve seen Texas Guard units deployed to Illinois, and the administration has even threatened to send them into other states as well. That bypasses the ordinary respect for state sovereignty—deploying forces into a state without consulting its governor. It also raises the very real concern of one state’s militia being used against another, which historically would have been viewed as an invasion.

Pam Karlan: And now the president has federalized the Guard and is bringing in units from Texas, presumably because he doubts whether Guard members from Illinois will carry out the tasks he wants. Under the statute, though, the president can only do this if there’s an invasion, a rebellion, or an inability to enforce federal law. Who gets to decide whether those conditions exist?

Bernadette Meyler: That question is at the center of the legal battles unfolding in both California and Illinois—cases that have already reached the Supreme Court. The administration’s position is that the president can federalize the Guard because he’s “unable to execute the laws” with regular forces, pointing to alleged threats of violence against ICE officials in these locations.

In California, a Ninth Circuit panel took a very deferential view. It held that the president’s determination should stand so long as it reflects a “colorable assessment” of the facts and falls within a “range of honest judgment.” What exactly that means is unclear—and it gives the president considerable leeway.

The Seventh Circuit was also deferential, but not quite as deferential as the Ninth. It looked more closely at the statutory terms—what counts as a “rebellion” or an “inability to execute the laws”—and suggested that courts still have a role in interpreting those thresholds. So, at this point, the circuit courts have granted the president some deference, but not total deference. And there’s an ongoing debate about where that deference should lie: with the president’s assessment of the facts on the ground, or with the courts’ interpretation of the legal standards themselves.

Pam Karlan: For generations, courts have relied on the “presumption of regularity” — the idea that the government acts in good faith and considers the right factors. How long can that presumption hold with this administration?

Bernadette Meyler: It’s a real concern. I’d like to think we can retain the presumption of regularity, but it becomes hard when decisions aren’t adequately explained or aren’t consistent with historical practice. Even if the president were to articulate a broad view of what it means to be “unable to execute the laws,” that interpretation would be far outside what we’ve seen over the past several centuries.

If this becomes a new norm, it raises the prospect of continuous National Guard deployment—and, if the Insurrection Act is invoked, even broader use of the military across the country. We’ve already seen proposals to have the Guard monitor elections in some places. So the presumption of regularity is under significant strain right now.

Pam Karlan: The idea of using the National Guard to monitor elections has been floated. Where does that even come from, legally or historically?

Bernadette Meyler: There are very narrow historical situations where the Guard—or the military—was used domestically under the Insurrection Act. During the civil rights era, for example, the federal government deployed the military to enforce desegregation when states used armed resistance to prevent Black children from entering schools. If a state today tried to nullify an election, you could imagine a similar federal role to enforce federal law.

But that goes directly to the trigger. If there’s no evidence that federal election laws can’t be enforced, there’s no justification for using the National Guard. What such a deployment would do is intimidate voters—an obvious benefit to those seeking to suppress turnout—but without an inability to enforce federal law, there’s no lawful basis.

And it’s important to remember that federal law has long prohibited the military from interfering in elections. A statute that’s been on the books for more than a century bars officers of the Army and Navy—later amended to include the Air Force—from participating in elections precisely because American law assumes the military is for fighting abroad, not policing voters at home.

This is also where the Posse Comitatus Act becomes crucial. Since 1878, it has prohibited the use of the military for domestic law enforcement unless Congress specifically authorizes it. That prohibition forms the backdrop for both the current deployment of the National Guard and the president’s suggestions about invoking the Insurrection Act.

Pam Karlan: And we don’t currently have any congressional authorization for using the military for domestic law enforcement.

Bernadette Meyler: Exactly. The only statute that could authorize that is the Insurrection Act. It allows the president to use the militia or armed forces to enforce federal authority when there’s a rebellion or when enforcing the laws has become “impracticable.” And it has a built-in requirement: before invoking the Act, the president must issue a proclamation ordering people to disperse if they’re believed to be engaged in an insurrection.

But even the administration doesn’t seriously claim that what’s happening now is an insurrection—those arguments appear only as secondary defenses in court. Their primary claim is “necessity to enforce the laws,” the idea that regular law enforcement isn’t functioning properly. That brings us right back to who decides that question and the degree of deference courts are affording the president.

Given that the Posse Comitatus Act explicitly prohibits using the military for domestic policing, the Insurrection Act should be read narrowly. Courts must determine when, if ever, the Insurrection Act actually overrides Posse Comitatus. That’s the lesson of the Supreme Court’s Youngstown Steel decision: President Truman claimed emergency wartime authority to seize the steel mills, and the Court held that Congress had not authorized what he was doing. Wartime powers used domestically are very different from their use abroad, and courts must interpret them narrowly when the military is operating inside the United States.

Pam Karlan: One of the striking developments lately is Secretary of Defense Pete Hegseth’s removal of the high-level Judge Advocate General lawyers within the military. How does that relate to what we’ve been discussing?

Bernadette Meyler: It’s closely connected, because it reflects the same erosion of regularity and the rule of law within the military itself. In the district court opinion involving the Los Angeles National Guard deployment, the court went into great detail about how Guard members had been trained—and how earlier training was reversed about what they were permitted to do, what counted as prohibited law-enforcement activity, and what did not. That reversal signaled a weakening of long-standing norms.

Removing the JAG leadership undermines those norms as well. In military cases I’ve read, even though the military operates within the executive branch, there’s traditionally been a strong internal commitment to strict legality and to maintaining a disciplined system of military justice. Replacing or sidelining the personnel responsible for enforcing those standards makes the entire system more flexible in ways that undercut regularity.

Pam Karlan: And that’s especially troubling because, as you note, the military—and certainly the National Guard—is not trained for everyday law enforcement. What this reminded me of was a Supreme Court case from last term, Barnes v. Felix, about when police can use deadly force. The Court rejected the “moment of threat” rule and said you have to look at whether the officer placed themselves in a situation where deadly force would become necessary. Police departments have even abandoned high-speed chases for similar reasons: the danger to bystanders is too great.

My worry is that if the military is operating in American cities, they’re simply not trained for those kinds of judgments. They’re trained for lethality, while modern policing emphasizes community engagement and de-escalation. Combine aggressive ICE tactics with National Guard members who are unaccustomed to civilian policing—and who may be nervous or improperly trained—and the risks are enormous. We’ve seen how that can end. Kent State remains a stark example.

Pam Karlan: If a National Guardsman uses excessive force—say, shoots someone without justification—what happens next? What kind of accountability is there?

Bernadette Meyler: That’s a crucial question. There would likely need to be a separate judicial challenge to the Guard’s deployment itself, but even then, the avenues for holding individual Guardsmen accountable are limited. They may have some form of immunity, even for conduct that violates civil rights. And on the criminal side—whether through military justice or civilian prosecution—we’ve seen the rise of a much more aggressive “unitary executive” approach, with President Trump insisting on personally approving prosecutions and setting law-enforcement priorities. Given that posture, it’s hard to imagine that someone who committed a violation in this context would actually be brought to justice under the current Justice Department.

Pam Karlan: We’re now waiting to see what the Supreme Court does in the Illinois case. Do you have a sense of where the Court may land?

Bernadette Meyler: It’s hard to predict. The key question will be how much deference the Court thinks the president is entitled to. The administration has argued for complete deference, relying on an early case called Martin, which I think is distinguishable. The Ninth Circuit took a middle ground—some deference, but not total deference. The Seventh Circuit was similar, though slightly less deferential.

The real issue is whether the Supreme Court will adopt one of three approaches: full deference to the president; an intermediate level of deference; or what I think is the correct approach—having the judiciary decide the meaning of terms like “inability to execute the laws” or “rebellion,” and then allowing the president to make determinations within those legal boundaries. I don’t know which path the Court will ultimately choose.

Pam Karlan: And the district judges who are granting stays at the outset are literally looking out their windows and saying, “I don’t see any of this happening.” They’re on the ground, they can assess the facts. But the Supreme Court—far from Chicago or Los Angeles—will be deciding on a thin record and effectively reaching the merits of whether the president can do this at all.

Bernadette Meyler: Exactly. What struck me about the Ninth Circuit panel’s decision was not just its significant deference to the president, but also its skepticism toward the district court’s factual findings. That’s unusual. Typically, appellate courts defer substantially to district courts on factual matters. Here, the hierarchy almost flipped, which is troubling in itself.

Pam Karlan: Well, we should know soon what the Supreme Court thinks.

Bernadette Meyler, JD ’03, who served as a 2020 Gugggenheim Fellow in Constitutional Studies, is a scholar of British and American constitutional law and of law and the humanities. Her research and teaching bring together the sometimes surprisingly divided fields of legal history and law and literature. She also examines the long history of constitutionalism, reaching back into the English common law ancestry of the U.S. Constitution, and explores the implications of this history for how the Constitution should be understood today.

Professor Meyler’s books stem from these respective areas of her scholarship. Theaters of Pardoning (Cornell UP, 2019) demonstrates that the representation of pardoning tracks changing conceptions of sovereignty within the plays and politics of seventeenth-century England. In doing so, the book considers how the shared audiences of dramatic and historical tragicomedy—whether Kings, students at the Inns of Court, or potential jurors—brought concepts from the literary into the legal arena and back again. Her current project, Common Law Originalism, shifts to the American context, looking at the multiple eighteenth-century common law meanings—both colonial and English—of various constitutional terms and phrases.