Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Applicants v. Illinois, et al.
Supreme Court briefNov 10, 2025
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No. 25A443
IN THE SUPREME COURT OF THE UNITED STATES
____________________________________
DONALD J. TRUMP, President of the United States, et al.,
Applicants,
v.
STATE OF ILLINOIS, et al.,
Respondents.
____________________________________
On Application for Stay of the Temporary Restraining Order Issued by The
United States District Court for The Northern District of Illinois
______________________________________
BRIEF AMICUS CURIAE OF THE SOCIETY FOR THE RULE OF LAW
INSTITUTE IN SUPPORT OF RESPONDENTS
November 10, 2025
Nancy A. Temple
Katten & Temple, LLP
209 S. LaSalle Street, Suite 950
Chicago, IL 60604
Brendan J. Haskin
2950 Van Ness St. NW, Apt. 607
Washington, DC 20008
Richard D. Bernstein
Counsel of Record
1875 K Street NW, Suite 100
Washington, DC 20006
(301) 775-2064
rbernsteinlaw@gmail.com
TABLE OF CONTENTS
TABLE OF CONTENTS………………………………………………………..
i
TABLE OF AUTHORITIES……………………………………………………
ii
INTEREST OF AMICUS CURIAE………………………………………………
1
INTRODUCTION AND SUMMARY OF ARGUMENT…………………….
1
ARGUMENT……………………………………………………………………….
3
I
II.
IN 10 U.S.C. § 12406(3), “THE REGULAR FORCES” REFERS TO
THE REGULAR FORCES OF THE UNITED STATES MILITARY……
3
A.
FORBIDDEN BY STATUTE IS NOT “UNABLE”………………….
5
B.
NO ADMINISTRATION HAS STATUTORY AUTHORITY TO USE
THE FEDERALIZED NATIONAL GUARD WHEN A STATUTE
FORBIDS USING THE ARMY AND THE AIR FORCE TO
EXECUTE FEDERAL LAW…………………………………………
6
HOW 10 U.S.C. § 12406(3) PROPERLY OPERATES IN PRACTICE…..
15
CONCLUSION…………………………………………………………………………..
18
i
TABLE OF AUTHORITIES
Page(s)
Cases
Dahda v. United States,
584 U.S. 440 (2018) .................................................................................................... 3
Fischer v. United States,
603 U.S. 480 (2024) .................................................................................................. 12
Greenlaw v. United States,
554 U.S. 237 (2008) .................................................................................................... 3
Kamen v. Kemper Fin. Svcs.,
500 U.S. 91 (1991) ...................................................................................................... 3
Learning Resources v. Trump,
No. 24-1287, Oral Ar. Tr, at 74 (U.S. Nov. 5, 2025)……………………………… 13
Nken v. Holder,
556 U.S. 418 (2009)……………………………………………………………………13,14
United Savings Ass’n of Texas v. Timbers of Inwood Forest Assocs.,
484 U.S. 365 (1988)……………………………………………………………..
8
United States v. Stewart,
311 U.S. 60 (1940)……………………………………………………………..
8
Whitman v. American Trucking Ass’ns,
531 U.S. 457 (2001)……………………………………………………………….
13
Statutes
Act of Jan. 21, 1903, § 9, 32 Stat. 775, 776 (1903)…………………………………. 9,12
Act of May 27, 1908, 35 Stat. 399, 400 (1908)……………………………………… 9,10
National Defense Act of 1916, 39 Stat. 166, 208 (1916)………………………. 9,10,11
1 Stat. 264 (1792)………………………………………………………………………..
12
10 U.S.C. §§ 252-53 ........................................................................................................ 5
10 U.S.C. § 253............................................................................................................. 16
10 U.S.C. §§ 273-74, 282-84..................................................................................... 5, 17
10 U.S.C § 275.................................................................................................. 2, 5, 7,14
10 U.S.C. §§ 3499 and 8499 (1956) ............................................................................. 10
10 U.S.C. §3500 (1956) .................................................................................................. 9
10 U.S.C. §§ 10106 and 10112 .................................................................... 2, 7, 8, 11,12
10 U.S.C. § 10122……………………………………………………………………..
12
10 U.S.C. § 12405 ....................................................................... 2, 8, 9, 10, 11,12, 13,14
10 U.S.C. § 12406(1) and (2) ........................................................................................ 12
10 U.S.C. § 12406(3) .............................. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11,12, 13, 14, 15, 16
16 U.S.C. § 23............................................................................................................... 17
16 U.S.C. § 78............................................................................................................... 17
18 U.S.C. § 351(g) ........................................................................................................ 17
ii
18 U.S.C. § 831(e), (f) ................................................................................................... 17
18 U.S.C. § 1385 ............................................................................................ 2,5,7,10, 11
22 U.S.C. § 408............................................................................................................. 17
22 U.S.C. § 461............................................................................................................. 16
25 U.S.C. § 180............................................................................................................. 16
Rules
Sup. Ct. R. 23.3…………………………………………………………………………….
15
Other Authorities
Pub. L. No. 1028, 84th Cong., 2d Sess., 70A Stat. 199, 525 (1956)............................. 10
A. Scalia & B. Garner, Reading Law 252 (2012)…………………………………… 8, 10
iii
INTEREST OF AMICUS CURIAE
Amicus The Society for the Rule of Law Institute (“SRLI”) is a non-profit,
non-partisan organization dedicated to defending the conservative legal principles
of the rule of law, separation of powers, federalism, and government by the people.1
SRLI has an interest in seeing that these principles are not violated by the misuse
of federalized National Guard units as an end-run around the restrictions that the
Constitution and Congress have placed on any Administration’s insertion of
America’s cherished military—including federalized National Guard units—into our
nation’s domestic life.
INTRODUCTION AND SUMMARY OF ARGUMENT
Part I of this brief shows that “the regular forces” in 10 U.S.C. § 12406(3)
refers to the regular military forces of the United States. As shown by the prior
amicus brief by Professor Lederman, over 100 years of statutes, case law, and
Executive Branch statements establish that “the regular forces” are the regular
military. But there is more. If, as the federal Government contends, “the regular
forces” refer to the law enforcement personnel at civilian federal agencies, then
federalized National Guard units can be drawn into executing federal laws when
federal statutes have forbidden using regular military units. This violates the
canon that laws in pari materia be read harmoniously. The congressional bars that
restrain use of the military to execute the law apply to all of “the Army” and “the
1
Amicus states that no counsel for any party authored this brief in whole or in part and that no entity, aside
from amicus and its counsel, made any monetary contribution toward the preparation or submission of
this brief.
1
Air Force.” 18 U.S.C. § 1385, 10 U.S.C § 275. In turn, 10 U.S.C. §§ 10106 and
10112 make every federalized National Guard unit a “component of the Army” or
“the Air Force.” Most important, 10 U.S.C. § 12405 makes all federalized National
Guard units “subject to the laws and regulations governing the Army or the Air
Force.” It is nonsensical to read § 12406(3) to allow National Guard units to be
federalized to do something that § 12405 would prevent all federalized National
Guard units from doing.
Part II shows that the way § 12406(3) properly operates does not
automatically force a President to use the regular military when the federalized
National Guard is better suited to a task that the regular military is authorized by
law to do. Federalizing a National Guard unit requires satisfying two conditions.
First, “the regular forces”—the regular military—must have legal authority to do
what the National Guard unit is to be federalized to do. Without such authority,
“the regular forces” are statutorily barred, rather than factually “unable.” Second,
factual reasons of comparative capabilities between military units, proximity, or
numbers must support that the regular military by itself would be factually
“unable" to accomplish the task adequately. This second condition would be
satisfied, for instance, where a President’s reasonable assessment of comparative
capabilities between military units was that deploying a federalized National Guard
unit, rather than a regular military unit, would decrease the likelihood of violent
local opposition to the peaceful execution of federal law. An example that
2
illustrates when both conditions are satisfied is federalizing National Guard units
to ensure school desegregation against unconstitutional resistance by state officials.
ARGUMENT
I.
IN 10 U.S.C. § 12406(3), “THE REGULAR FORCES” REFERS TO
THE REGULAR FORCES OF THE UNITED STATES MILITARY.
The federal Government argues that "the regular forces" refer to the “federal
law enforcement personnel” of every agency of the federal government and not
instead to the regular military. Appl. 30 n. 4. The District Court’s opinion showed
that "the regular forces" refer to the regular military, carefully analyzing the
statutory language and its history as well as historical constraints going back to the
Founding on using either the militia—now called the National Guard—or the
regular military to execute federal laws domestically. Appx. 48a-50a, 68a-71a. As
the federal Government has not even argued that the National Guard should be
federalized because the regular military is unable to execute federal laws in Illinois,
this provides one sufficient basis by itself to deny a stay.2
The Brief of Professor Martin S. Lederman as Amicus Curiae In Support of
Respondents, at 8-18, filed Oct. 21, 2025 (“Lederman Br.”), already has
demonstrated comprehensively that from 1776 through 1908—when the
2
This Court should deny a stay based on the District Court’s correct interpretation of "the regular forces,"
regardless of whether any party has supported that statutory interpretation. See, e.g., Kamen v. Kemper
Fin. Svcs., 500 U.S. 91, 99 (1991) ("When an issue or claim is properly before the court, the court is not
limited to the particular legal theories advanced by the parties, but rather retains the independent power to
identify and apply the proper construction of governing law."); Dahda v. United States, 584 U.S. 440, 450
(2018) ("we may affir[m] a lower court judgment on any ground permitted by the law and the record")
(internal quotations omitted); cf. Greenlaw v. United States, 554 U.S. 237, 250 & n.5 (2008) (Court may
affirm based on a "novel" legal argument "presented for the first time in the brief amicus filed in this
Court").
3
predecessor of 10 U.S.C. §12406(3) was amended to add “the regular forces”—and
beyond, “the regular forces” has meant the regular military in statutes, precedent,
and Executive Branch statements. Critically, the addition of “the regular forces” in
1908 changed the statute. Unlike in § 12406(3), Congress had expressly referred to
civilian personnel, by referring to “marshals” and “the ordinary course of judicial
proceedings,” in prior statutes in the 1790s, where Congress had wanted the militia
to be a back-up to civilian personnel. See id. at 17 n.10 (discussing 1792 and 1795
militia statutes). That changed by 1908 when the statute removed references to
civilian personnel and substituted “the regular forces,” which refers to the regular
military.
This amicus brief will not replicate Professor Lederman’s demonstration.
Rather, this brief shows that principles of textualism, statutory context, and in pari
materia confirm that “the regular forces” refer only to the regular military.
To start, “the regular forces” is part of a statutory limitation on the power
delegated by Congress to the Executive Branch. Clause 15 of § 8 of Article I of the
Constitution assigns to Congress, not the President, the legislative power by statute
to “call[] forth the Militia to execute the Laws of the Union.” In § 12406(3),
Congress has delegated much less authority to the Executive Branch to federalize
National Guard units. This statutory provision delegates authority to the President
to federalize National Guard units only if “the regular forces” are “unable” to
execute federal “laws,” and then only to the extent “necessary to . . . execute those
laws.” Congress said “the regular forces,” not broader phrases such as “officers and
4
employees of the United States,” “the federal government,” “federal agencies,”
“federal law enforcement personnel,” or the like.
The federal Government’s Application, at 30 n.4, cites the general rule that
the regular military is barred by statute from “executing the laws.” E.g., 18 U.S.C.
§ 1385; see 10 U.S.C. § 275. But there are a number of limited exceptions where
statutes authorize the regular military to execute federal law or assist in executing
federal law. See, e.g., 10 U.S.C. §§ 252-53 (the "Insurrection Act"); 10 U.S.C. §§ 27374, 282-84; Appx. 75a (cataloging other statutes).
The federal Government has stated that the regular military does not
“regularly” execute federal laws. Appl. 30 n.4. This is true but it misses the point.
As noted, there are limited exceptions where the regular military does execute
federal law. The question is whether, outside those exceptions, does 10 U.S.C. §
12406(3) authorize federalizing National Guard units to do exactly what Congress
by statute has forbidden using the regular military to. It does not.
A. FORBIDDEN BY STATUTE IS NOT “UNABLE.”
“[F]ederal law forbids [the regular military’s] deployment for the very mission
at hand.” Amicus Brief of The American Center for Law and Justice in Support of
Applicants (“ACLJ Br.”) at 2 (emphasis added). Legally forbidden, however does
not satisfy "unable" in this statutory context. "[U]nable with the regular forces to
execute the laws of the United States" in § 12406(3) means that, as a factual
matter, "the regular forces" lack the capabilities, proximity, or numbers to execute
those laws adequately, in a case where the regular forces are legally authorized to
5
do so. When the "the regular forces" are under a statutory bar, they are precluded
or unauthorized, not factually unable.
Let's assume, for argument's sake, that the federal Government is right that
"the regular forces" refers to the “federal law enforcement personnel” at the
pertinent federal civilian agencies. Appl. 30 n.4. Suppose Congress precluded all
the “federal law enforcement personnel” at the pertinent non-military agencies from
using federal funds to enforce particular laws—say marijuana possession laws or
the TikTok ban—for two years. Those agencies remain able to execute those
laws. They have the staff and the expertise. They are instead legally barred from
doing so for a period. Surely, it would be unreasonable in such a case to read §
12406(3) as authorizing federalizing the National Guard to enforce the laws that
Congress had prohibited the pertinent civilian agencies from enforcing. Thus,
whether or not “federal law enforcement personnel” at civilian agencies are "the
regular forces," § 12406(3) cannot have been intended by Congress to create an everready federal police for any Administration’s end-runs around statutory
prohibitions enacted by Congress.
B. NO ADMINISTRATION HAS STATUTORY AUTHORITY TO USE THE
FEDERALIZED NATIONAL GUARD WHEN A STATUTE FORBIDS
USING THE ARMY AND THE AIR FORCE TO EXECUTE FEDERAL
LAW.
After this Court’s October 29, 2025, Order in this case, the federal
Government conceded in a brief in the District Court of Oregon that “‘regular forces’
in other contexts can refer to the standing military.” Defendants Post-Trial
Memorandum, at 5, filed Nov. 1, 2025, in State of Oregon v. Trump, Case No. 3:25-
6
cv-01756-IM (D. Or.) (“DOJ Nov. 1 Brief”). The federal Government contended that
10 U.S.C. § 12406(3) was different, however, because an Administration should
have authority to use the militia where a statute prohibits “use of the standing
military as the regular forces for the execution of laws.” DOJ Nov. 1 Br. at 5-7. The
federal Government’s proposed dichotomy between the authority to use the regular
military and the authority to federalize National Guard units contradicts the plain
text of Titles 10 and 18.
To start, when 10 U.S.C. § 12406(3) is properly used to federalize a National
Guard unit, 10 U.S.C. §§ 10106 and 10112 make that federalized National Guard
unit "a component of the Army" or "a component of the Air Force." (Emphasis
added.) When an Army National Guard unit is federalized, that literally means
“you’re in the Army now.” In turn, the general prohibition in 18 U.S.C. § 1385
against “execut[ing] the laws” applies to using “any part of the Army, the Navy, the
Marine Corps, the Air Force, or the Space Force.” (Emphasis added.) The restraints
of 10 U.S.C. § 275 likewise apply to using any “member of the Army, Navy, Air
Force, or Marine Corps.” (Emphasis added.)
Under the federal Government’s anti-textual dichotomy, every
Administration could regularly make end-runs to evade the statutory bars against
using any part and any member of the Army and Air Force in the domestic
execution of federal law. Suppose there is a situation where 18 U.S.C. § 1385 or 10
U.S.C. § 275 barred using the Army and Air Force to execute federal laws, and there
was no statutory exception. Under the federal Government’s argument, federalized
7
National Guard units—that are by statute “component[s] of the Army” and “the Air
Force”—nonetheless could be used under § 12406(3) to do exactly what Congress by
statute has barred using any part or any member of the Army and the Air Force to
do. That contradicts the text of 10 U.S.C. §§ 10106, 10112, 18 U.S.C. § 1385, and 10
U.S.C. § 275. That contradiction is readily avoided by a proper construction of §
12406(3) under which “the regular forces” in § 12406(3) refer to the regular forces of
the United States military. Under the proper construction, in this situation, the
regular military is forbidden from executing the laws and, as shown above in Part
I.A, forbidden is not “unable.” In turn, the requirement of § 12406(3) that “the
regular forces” be “unable” is not satisfied.
The proper construction of § 12406(3) is confirmed by the “Related-Statutes
Canon,” which is: “Statutes in pari materia are to be interpreted together, as though
they were one law.” A. Scalia & B. Garner, Reading Law 252 (2012); see, e.g.,
United States v. Stewart, 311 U.S. 60, 64 (1940). 10 U.S.C. § 12406(3) is in pari
materia with 10 U.S.C. §§ 10106, 10112, and 12405 as they all address the status of
and authority to use federalized National Guard units. In particular, 10 U.S.C. §
12405 provides that when National Guard units are federalized, those units are
“subject to the laws and regulations governing the Army or the Air Force."
Accordingly, federalized National Guard units cannot be used to execute statutes
that “the laws . . . governing the Army or the Air Force” have not authorized the use
of the Army or Air Force to execute.
8
Because “the body of the law should make sense,” Reading Law 252, related
statutes such as 10 U.S.C. §§ 10106, 10112, 12405, and 12406(3) should be read
together to be coherent and consistent with one another. See id. at 252; see also
United Savings Ass’n of Texas v. Timbers of Inwood Forest Assocs., 484 U.S. 365,
371 (1988) (because “statutory construction . . . is a holistic endeavor,” the Court
should adopt the “permissible meaning[] [that] produces a substantive effect that is
compatible with the rest of the law”). It is nonsensical that § 12406(3) would allow
federalizing a National Guard unit to execute federal laws that § 12405 forbids
using any federalized National Guard unit to execute, because a statute bars using
the Army and the Air Force to execute those laws. Federalizing National Guard
units cannot be a vehicle for evading prohibitions imposed by statute on using any
part of the Army and Air Force—including federalized National Guard units. Put
another way, it cannot be “necessary” under § 12406(3) to federalize National Guard
units to “execute those laws” in any situation where § 12405 simultaneously bars
using federalized National Guard units to execute those laws.
Pursuant to a statute enacted by Congress, any interpretation or use of §
12406(3) must be consistent with § 12405. The predecessor of what is now 10
U.S.C. § 12406(3) was first amended to include the term "the regular forces" by § 3
of the Act of May 27, 1908. 35 Stat. 399, 400 (the “1908 Act”). 3 In the National
Defense Act of 1916 (the "1916 Act"), however, § 101 enacted a restriction that had
3
Section 3 of the 1908 Act said “the regular forces at his command.” 35 Stat. at 400. In the 1956
recodification of Title 10, “at his command” was “omitted as surplusage.” 10 U.S.C. §3500 Historical
And Revision Notes (1958).
9
not been as broad in prior law: "The National Guard when called as such into the
service of the United States shall . . . be subject to the laws and regulations
governing the Regular Army, . . . " 39 Stat. 166, 208 (1916).4 This restriction
subjecting federalized National Guard units to "the laws and regulations governing
the Regular Army" included subjecting federalized National Guard units to the
prohibition that 18 U.S.C. § 1385 imposed on using the Regular Army and to the
limits on the authority given by the Insurrection Act for using the Regular Army.
Critically, § 128 of the 1916 Act provides: "All laws and parts of laws in so far
as they are inconsistent with this Act are hereby repealed." 39 Stat. at 217
(emphasis added). Even if § 3 of the 1908 Act— “the regular forces” provision—was
ambiguous in 1908, "the meaning of an ambiguous provision may change in light of
a subsequent enactment." Reading Law, at 254-55; see also id. at 330 (when
statutes are in pari materia, “a later enactment . . . will often change the meaning
that would otherwise be given to an earlier provision that is ambiguous”). Thus, § 3
of the 1908 Act, to the maximum extent possible, must be read and applied in a
manner consistent with the restriction in § 101 of the 1916 Act.
As 10 U.S.C. § 12405 is the amended version of § 101 of the 1916 Act,5 and 10
U.S.C. § 12406(3) is the amended version § 3 of the 1908 Act, the scope and use of §
4
Prior to the 1916 Act, the requirement read more narrowly: “The militia, when called into the actual service
of the United States, shall be subject to the same Rules and Articles of War as the regular troops of the United
States.” Act of Jan. 21, 1903, § 9, 32 Stat. 775, 776 (1903).
5
The current terms of 10 U.S.C. § 12405 were codified by 1956 in 10 USC §§ 3499 and 8499, except
that the 1956 version of title 10 had substantively identical restrictions for the Army National Guard
and Air Force National Guard in two provisions. Pub. L. No. 1028, 84th Cong., 2d Sess., 70A Stat. 199,
10
12406(3) cannot exceed the restriction in § 12405. This provides another reason
that § 12406(3) cannot be construed or used to allow the National Guard to be
federalized to execute the laws of the United States in any circumstances where it
has not been shown that there is legal authority to use the Army or the Air Force to
execute those laws.
The government misplaces reliance on the portion of 18 U.S.C. § 1385 that
permits using the military to execute the laws “in cases and under circumstances
expressly authorized by the Constitution or [different] Acts of Congress.” See DOJ
Nov. 1 Br. at 8. The issue here is the extent to which the terms of those other “Acts
of Congress” —10 U.S.C. §§ 10106, 10112, 12405, and 12406(3)—expressly
authorize, or instead limit the authority for, using federalized National Guard units
to execute federal laws. Moreover, 18 U.S.C. § 1385 was first enacted in 1878. 10
U.S.C. § 12405, which is the amended version of § 101 of the 1916 Act, limits the
authority to use federalized National Guard units to the same authority to use
Army and Air Force units under “the laws and regulations governing the Army or
the Air Force.” And § 128 of the 1916 Act repealed “[a]ll laws and parts of laws in
so far as they are inconsistent with” § 101 of the 1916 Act. Thus, 18 U.S.C. § 1385
cannot be read to contradict 10 U.S.C. § 12405 by creating a dichotomy that
authorizes using a federalized National Guard unit where a statute forbids using
the rest of the Army and Air Force.
525 (1956). The subsequent and current codification of 10 U.S.C. § 12405 combines the same
restrictions in one section applicable to both Guards.
11
Likewise, the ACLJ misplaces reliance on the uses of the militia in the 1790s.
See ACLJ Br. at 8-12. Those uses are irrelevant because they occurred under
defunct statutes that were very different from Section 12406(3) and other statutes
that have governed since 1908. First, the 1792 and 1795 statutes expressly
permitted using the militia as a back-up to federal civilian law enforcement,
including "the marshals." 1 Stat. 264 (1792); 1 Stat. 424 (1795).
That changed by
1908 for what is now Section 12406(3) with the removal of references to civilian law
enforcement and substitution of the condition that "the regular forces" were "unable
. . . to execute the laws." 35 Stat. at 400. And, as Professor Lederman has shown
and ACLJ effectively concedes, by 1908, "the regular forces" was the term used for
the regular military. See ACLJ Br. at 6. Second, statutes enacted after the 1790s—
a 10 U.S.C. §§ 10106, 10122, and 12405 – expressly make a federalized National
Guard unit part of the Army or the Air Force and subject to the laws governing the
Army or the Air Force. Thus, the proposed dichotomy between the supposed
authority to use the federalized National Guard units of the Army and the Air Force
to execute the laws and the forbidden use of the regular units of the Army and the
Air Force in the same circumstances, see ACLJ Br. at 2, 6, is a non-starter under
these statutes.
In this case, the federal Government has never invoked the Insurrection Act,
or any other statute authorizing the use of the Army or the Air Force to execute
federal law, much less claimed that the statutory conditions for execution of federal
laws by the Army or the Air Force have been satisfied. Thus, the federal
12
Government has not attempted to make the necessary showing under § 12406(3)
that “the regular forces” are unable to execute federal laws here, rather than being
forbidden by statute from doing so.
The federal Government’s attempted misuse of the National Guard has no
limits. It would turn National Guard units into components of the Army or Air
Force—carrying military weapons and wearing military uniforms—to be used as a
roving domestic Army whenever any President finds that the law enforcement
personnel of any federal agency charged with executing federal laws need
assistance, including even when a statute bars using the Army and Air Force to
provide that assistance. The breadth of the federal Government’s argument is
shown by the federal Government’s reliance on President Nixon's use of the
National Guard to sort the mail during a postal strike. See Appl. 29; but cf.
Lederman Br. at 18-19 n.11. So, for example, on the federal Government’s theory,
any President could federalize the National Guard if there is, in that President's
view, a shortage of tax collectors or investigators at the IRS. See DOJ Nov. 1 Br. at
8-9 (arguing that § 12406(3) would apply “if tax collectors went on strike”). And so
on to SEC, CFTC, FTC, EPA investigators and enforcement personnel, etc., as they,
like tax collectors, execute various federal laws.
This violates the canon of noscitur a sociis. Under this canon, 10 U.S.C. §
12406(3) should not be given “a meaning so broad that it is inconsistent with the
company it keeps.” Fischer v. United States, 603 U.S. 480, 487 (2024) (internal
quotations omitted). 10 U.S.C. § 12406(1) and (2) save federalizing our treasured
13
National Guard for rare, monumental threats: invasion, “danger of invasion,”
“rebellion or danger of rebellion.” An interpretation of § 12406(3) that extends so
far into domestic affairs as to encompass federalizing the National Guard for
everyday matters such as tax collection, SEC, CFTC, FTC, and EPA enforcement
matters, and so on, cannot be squared with noscitur a sociis.
This Court has ruled over and over again that no federal statute hides an
elephant in a mousehole. See, e.g., Whitman v. American Trucking Ass’ns, 531 U.S.
457, 468 (2001). To quote Justice Gorsuch, this Court should not create a major
addition to the “one-way ratchet toward the gradual but continual accretion of
power in the executive branch and away from the people’s elected representatives”
in Congress. Learning Resources, Inc. v. Trump, No. 24-1287, Oral Arg. Tr, at 74
(U.S. Nov. 5, 2025). Federalizing the National Guard to be the roving domestic
Army for assisting all civilian federal law enforcement personnel is a big
elephant. So is federalizing National Guard units to execute federal laws that the
regular military is barred from executing. This Court should not squeeze either
elephant—much less both—into the mousehole that is 10 U.S.C. § 12406(3). The
District Court’s statutory interpretation was right.
Finally, the use of a federalized National Guard unit must comply with §
12405 regardless of how this Court interprets § 12406(3). See supra, at 8-11. For
example, assume, for argument’s sake, that this Court were to grant a stay, in whole
or part. This Court should use its authority, under principles of equity and the
Nken factors of protecting other interested persons and the public interest, to
14
instruct Applicants that pursuant to 10 U.S.C. § 12405, in Illinois they cannot use
any member of any federalized National Guard unit to engage in any activity where
Applicants lack statutory authority to use a member of a regular unit of the Army
or the Air Force. See Nken v. Holder, 556 U.S. 418, 426-27 (2009) (this Court has
“authority . . . to act responsibly”). The Court should expressly instruct that in
Illinois, Applicants must not (a) use any member of a federalized National Guard
unit to execute federal laws in circumstances that do not satisfy the Insurrection
Act or (b) order any member of a federalized National Guard unit to participate “in
a search, seizure, arrest, or other similar activity,” 10 U.S.C. § 275, except in
circumstances where there is statutory authority to order a member of a regular
unit of the Army or the Air Force to do so. Protecting both the members of our
prized National Guard and our citizens requires no less.
II.
HOW 10 U.S.C. § 12406(3) PROPERLY OPERATES IN PRACTICE.
Contrary to the DOJ Nov. 1 Br. at 9, properly construing the "the regular
forces" in § 12406(3) to refer to the regular military does not automatically force the
President to use the regular military, where it has authority to execute the law, in
preference to the federalized National Guard. Federalization of a National Guard
unit under § 12406(3) is proper when two conditions are both satisfied. The first
condition is that statutory authority exists to use the regular military to execute the
federal laws in the situation presented. That statutory interpretation presents a
legal issue subject to de novo review. If this first condition is not satisfied, that is
the end of the inquiry. This is because when there is no authority to use the regular
15
military to execute federal laws, then there is no authority to federalize a National
Guard unit under either 10 U.S.C. § 12406(3) or § 12405, much less under the
combination when both are read in pari materia. See supra, at 5-15.
If there is authority to use the regular military, the second condition is that,
in the reasonable assessment of a President, a factual matter of comparative
capabilities between military units, proximity, or numbers supports using the
federalized National Guard to execute federal laws adequately, instead of or in
addition to the regular military. See Appl. 31 (suggesting standard of “adequate
federal forces”); Lederman Br. at 18-19 n. 11 (explaining that President Nixon used
the National Guard in 1970 because the Vietnam War left the regular military with
insufficient numbers to help sort the mail during the postal strike). This amicus
brief does not argue that a President may make these factual inadequacy
assessments only after first deploying the regular military. A President would
receive some deference from the courts on the factual assessments of the second
condition—the comparative capabilities, proximity, and numbers of the National
Guard units and the regular military units.
In this case, however, the federal Government has not even asserted that
either the first or second condition is satisfied. It cannot do so for the first time as a
part of a stay application. See Sup. Ct. R. 23.3.
The following example illustrates a proper use of § 12406(3). Suppose state
officials are blocking the schoolhouse door to black students, in violation of the
Fourteenth Amendment and court orders. Because of that improper state action,
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the Insurrection Act would authorize the President’s sending in the regular
military—as it did in Little Rock in 1957. See Lederman Br. at 21-22 & n. 15
(discussing 1964 Katzenbach opinion). So, the threshold first condition is satisfied.
The President also concludes that using the regular military would be an
inadequate way to execute federal law because doing so would increase the
likelihood of violent opposition by the local population to the peaceful execution of
federal law. In comparison, federalizing the state’s National Guard, the President
reasonably concludes, decreases the likelihood of violent opposition by the local
population and increases the likelihood of local compliance with federal law. Cf.
DOJ Nov. 1 Br. at 9 (ignoring the requirement that the regular military must have
authority, while arguing “unable” is satisfied where regular military is “less wellsuited” because of “the calming effect that the presence of the National Guard has
in its deployments”). This satisfies the second condition as the President has
reasonably concluded that the better capabilities of the National Guard unit would
be necessary to execute federal law adequately. Thus, this example is a proper
federalization under 10 U.S.C. § 12406(3).
The proper interpretation of 10 U.S.C. § 12406(3) gives that provision a
meaningful function. To start, statutes such as 10 U.S.C. § 253 and 22 U.S.C. § 461
allow the President only to "us[e] the militia" but not to federalize it. Federalizing a
National Guard unit has the advantage of making that unit subject to federal
civilian and uniformed commanders, not to state commanders only. The members
of a federalized National Guard unit are also subject to court martial. Moreover,
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there are a number of other statutory provisions that allow the President, the
Secretary of Defense, or the Secretary of the Army to use the regular military
to execute certain federal laws, or assist in their execution, but these statutory
provisions themselves do not mention the militia or the National Guard. See, e.g.,
10 U.S.C. §§ 273-74, 282-283, 284(b)(3)-(4), (6)-(7), & (c); 16 U.S.C. § 23; 16 U.S.C. §
78; 18 U.S.C. § 351(g); 18 U.S.C. § 831(e), (f); 22 U.S.C. § 408; 25 U.S.C. § 180. For
these kinds of statutes, 10 U.S.C. § 12406(3) enables the President to federalize
National Guard units instead or in addition to the regular military, when the
regular military is (a) legally authorized but (b) nonetheless unable to adequately
execute these statutes for factual reasons of comparative capabilities between
military units, proximity, or numbers.
CONCLUSION
The Court should deny the application.
/s/ Richard D. Bernstein
Richard D. Bernstein
Counsel for Amicus
Nancy A. Temple
Katten & Temple, LLP
209 S. LaSalle Street, Suite 950
Chicago, IL 60604
Brendan J. Haskin
2950 Van Ness St. NW, Apt. 607
Washington, DC 20008
Richard D. Bernstein
Counsel of Record
1875 K Street NW, Suite 100
Washington, DC 20006
(301) 775-2064
rbernsteinlaw@gmail.com
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.