No. 25A443
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`In The Supreme Court of the United States
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`DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT
`OF THE UNITED STATES, ET AL.,
` Applicants,
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`v.
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`STATE OF ILLINOIS, ET AL.,
`Respondents.
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`On Emergency Application for Stay Pending Appeal
`From the United States Court of Appeals for the Seventh Circuit
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`AMICUS BRIEF OF THE AMERICAN CENTER FOR LAW AND JUSTICE
`IN SUPPORT OF APPLICANTS
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`AY ALAN SEKULOW
` Counsel of Record
`JORDAN SEKULOW
`STUART J. ROTH
`ANDREW J. EKONOMOU
`BENJAMIN P. SISNEY
`NATHAN J. MOELKER
`AMERICAN CENTER
` FOR LAW & JUSTICE
`201 Maryland Ave., NE
`Washington, DC 20002
`(202) 546-8890
`sekulow@aclj.org
`Counsel for Amicus
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`TABLE OF CONTENTS
`TABLE OF AUTHORITIES .......................................................................................... ii
`INTEREST OF AMICUS ............................................................................................... 1
`INTRODUCTION .......................................................................................................... 1
`ARGUMENT .................................................................................................................. 4
`I. THE PRESIDENT’S CONSTITUTIONAL AND STATUTORY AUTHORITY TO
`FEDERALIZE THE NATIONAL GUARD IS BEYOND JUDICIAL REVIEW ............... 4
`A. 10 U.S.C. § 12406(3) CANNOT REQUIRE THE USE OF THE ACTIVE-DUTY
`MILITARY FOR DOMESTIC LAW ENFORCEMENT DUE TO THE POSSE
`COMITATUS ACT ..................................................................................5
`B. THE HISTORICAL TRADITION OF THE MILITIA ACTS DEMONSTRATES
`THAT PRESIDENTS HAVE BROAD AUTHORITY TO FEDERALIZE THE
`NATIONAL GUARD ..............................................................................8
`C. PRESIDENTIAL DETERMINATIONS UNDER THE MILITIA ACTS ARE
`UNREVIEWABLE ............................................................................... 13
`D. THE POLITICAL QUESTION DOCTRINE BARS JUDICIAL REVIEW OF
`MILITARY AND FOREIGN AFFAIRS DECISIONS .................................. 18
`CONCLUSION ............................................................................................................. 21
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`TABLE OF AUTHORITIES
`Cases
`Baker v. Carr, 369 U.S. 186 (1962) ............................................................................. 18
`Clinton v. Jones, 520 U.S. 681 (1997) ......................................................................... 17
`Coleman v. Miller, 307 U.S. 433 (1939) ...................................................................... 17
`Gilligan v. Morgan, 413 U.S. 1 (1973) ........................................................................ 20
`Lamb’s Chapel v. Center Moriches Sch. Dist., 508 U.S. 384 (1993) ............................. 1
`Luther v. Borden, 48 U.S. (7 How.) 1 (1849) ........................................... 3, 4, 13, 15, 16
`Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827) ........................................ 3, 4, 13-17, 19
`Massachusetts v. EPA, 549 U.S. 497 (2007) ................................................................ 17
`McConnell v. FEC, 540 U.S. 93 (2003) .......................................................................... 1
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`Oregon v. Trump,
` 2025 U.S. App. LEXIS 27248 (9th Cir. Oct. 20, 2025) ............................ 8, 11, 12, 17
`Perpich v. Dep’t of Def., 496 U.S. 334 (1990) ................................................................ 5
`Trump v. Anderson, 601 U.S. 100 (2024) ...................................................................... 1
`Trump v. Hawaii, 585 U.S. 667 (2018) ......................................................................... 1
`Trump v. Int’l Refugee Assistance Project, 582 U.S. 571 (2017) ................................... 1
`Trump v. United States, 603 U.S. 593 (2024) ............................................................... 1
`Zivotofsky v. Clinton, 566 U.S. 189 (2012) .................................................................. 17
`Statutes
`10 U.S.C. § 12406 .................................................................... 2, 4-6, 8, 9, 12, 13, 17, 18
`Posse Comitatus Act, 18 U.S.C. § 1385 ......................................................................... 6
`Act of May 2, 1792, ch. 28, 1 Stat. 264 ...................................................................... 8, 9
`Militia Act of 1795, ch. 36, 1 Stat. 424 .......................................................................... 9
`Militia Act of 1903, Pub. L. No. 57-33, 32 Stat. 775 ..................................................... 9
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`Constitutional Provisions
`U.S. Const. art. I, § 8 ............................................................................................... 9, 18
`Other Authorities
`AKHIL REED AMAR, THE WORDS THAT MADE US (2021) .............................................. 10
`First Annual Message to Congress, Dec. 3, 1901, 14 Messages and Papers of the
`Presidents 6672 .......................................................................................................... 5
`Frederic D. O’Brien, The Fries Rebellion, AMERICAN HERITAGE (Apr. 1999),
`https://perma.cc/H8EF-CN4S .................................................................................. 11
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`INTEREST OF AMICUS1
`The American Center for Law and Justice ( “ACLJ”) is an organization
`dedicated to the defense of constitutional liberties secured by law, including the
`President’s authority as commander in chief . ACLJ attorneys have appeared often
`before this Court as counsel for parties, e.g., Trump v. Anderson, 601 U.S. 100 (2024);
`McConnell v. FEC, 540 U.S. 93 (2003); Lamb’s Chapel v. Center Moriches Sch. Dist.,
`508 U.S. 384 (1993) ; or for amici, e.g., Trump v. United States, 603 U.S. 593 (2024) ;
`Trump v. Hawaii, 585 U.S. 667 (2018); and Trump v. Int’l Refugee Assistance Project,
`582 U.S. 571 (2017). The ACLJ has a strong interest in defending the constitutional
`separation of powers and ensuring that each branch of government operates within
`its proper sphere of authority. The ACLJ is particularly concerned here with
`preserving the President ’s fundamental authority and responsibility to supervise
`executive officers.
`INTRODUCTION
`This case presents a question as old as the Republic itself: w ho decides when
`federal law cannot be executed and federal forces must be called forth to restore
`order? The answer, settled nearly two centuries ago and reaffirmed by this Court ever
`since, is the President alone.
`The district court’s preliminary injunction represents an extraordinary judicial
`intrusion into the President ’s constitutional authority as Commander in Chief and
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`1 Pursuant to Supreme Court Rule 37.6, amicus curiae state that no counsel for any party authored
`this brief in whole or in part, and no entity or person, aside from amicus curiae, its members, and its
`counsel, made any monetary contribution toward the preparation or submission of this brief. This brief
`has been filed within the time allocated by this Court’s order.
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`his statutory responsibility to ensure faithful execution of the laws. By second -
`guessing the President ’s determination that regular forces were insufficient for
`domestic law enforcement, the court below ventured into terrain this Court has
`repeatedly marked as beyond judicial competence. The injunction not only disrupts
`ongoing military operations but fundamentally misapprehends both the text of 10
`U.S.C. § 12406(3) and the structural constitutional principles that animate it.
`The statute ’s language is clear: the President may federalize the National
`Guard when he is “unable with the regular forces to execute the laws. ” Respondents
`would have this Court read “ unable” to mean “exhausted”—requiring the President
`to deploy every available active-duty service member before calling up the Guard. But
`that interpretation faces a fundamental obstacle: the Posse Comitatus Act generally
`prohibits using active -duty military forces for domestic law enforcement. The
`President is therefore “unable with the regular forces” not because those forces have
`been consumed elsewhere, but because federal law forbids their deployment for the
`very mission at hand. Section 12406 (3) exists precisely to fill this gap —authorizing
`Guard federalization when regular military forces cannot lawfully be used.
`This construction finds powerful support in two centuries of unbroken practice.
`From President Washington’s response to the Whiskey Rebellion through President
`Adams’s suppression of Fries’s Rebellion and beyond, the calling-forth power has been
`understood to authorize military intervention when civilian law enforcement is
`inadequate to execute federal law. No President has ever been required to exhaust
`the standing Army before invoking militia authority. The threshold has always been
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`whether federal officials can safely perform their duties —not whether every last
`soldier has been committed to the task.
`More fundamentally, this Court held long ago that such determinations belong
`exclusively to the President. In Martin v. Mott , 25 U.S. (12 Wheat.) 19 (1827) , this
`Court confronted a militiaman who refused to answer the President ’s call, arguing
`that courts could review whether the statutory prerequisites had been satisfied. The
`Court unanimously rejected that claim, holding that “the authority to decide whether
`the exigency has arisen, belongs exclusively to the President, and that his decision is
`conclusive upon all other persons. ” Id. at 30. Twenty -two years later, in Luther v.
`Borden, 48 U.S. (7 How.) 1 (1849) , the Court reaffirmed that presidential militia
`determinations present political questions beyond judicial review.
`The separation of power s does not permit federal courts to superintend
`military deployments or countermand the President ’s operational judgments. The
`district court’s contrary conclusion threatens to unravel the constitutional structure.
`If any federal judge can enjoin military deployments by questioning the President ’s
`factual determinations, military operations become subject to the whims of conflicting
`district court orders. Unity of command dissolves into judicial chaos. And the
`President—accountable to the electorate for his decisions in war and peace—finds his
`constitutional authorities shackled by courts wielding equitable powers never
`intended to reach so far.
`Respondents ask this Court to overturn nearly two centuries of settled law and
`practice. They seek judicial authority to examine the President’s military judgments,
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`demand justification for his operational decisions, and enjoin deployments the
`President deems necessary to protect federal personnel from violent attack. This
`Court should decline the invitation. The stay should issue, the injunction should be
`vacated, an d the question of whether the President properly invoked § 12406 (3)
`should be recognized for what Martin and Luther held it to be: a political question
`committed to the President’s discretion.
`ARGUMENT
`I. THE PRESIDENT’S CONSTITUTIONAL AND STATUTORY AUTHORITY TO
`FEDERALIZE THE NATIONAL GUARD IS BEYOND JUDICIAL REVIEW.
`The power to call forth and govern the militia lies with the President, not the
`courts and certainly not plaintiffs with differing policy goals. The President lawfully
`invoked 10 U.S.C. § 12406(3) to protect federal personnel from sustained violent
`attacks. This Court’s question about “ regular forces” is dispositive. While t hat term
`may include active-duty military, the Posse Comitatus Act prohibits them from
`ordinarily engaging in domestic law enforcement. The President is therefore “unable
`with the regular forces” to execute many federal laws—not because such forces have
`been exhausted, but because they cannot lawfully be deployed. Section 12406(3)
`authorizes Guard federalization to fill this gap. Two centuries of practice confirm this
`understanding. And twice this Court has held that presidential militia
`determinations are unreviewable: Martin v. Mott, 25 U.S. (12 Wheat.) 19, 30 (1827) ;
`Luther v. Borden, 48 U.S. (7 How.) 1, 43 (1849). Those decisions establish the outcome
`here.
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`A. 10 U.S.C. § 12406(3) CANNOT REQUIRE THE USE OF THE ACTIVE-
`DUTY MILITARY FOR DOMESTIC LAW ENFORCEMENT DUE TO THE
`POSSE COMITATUS ACT.
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`This Court has directed the parties to address whether the term “ regular
`forces” in 10 U.S.C. § 12406(3) refers to the regular forces of the United States
`military, and if so, how that interpretation affects the operation of the statute. When
`the two questions are asked together, the answer is straightforward. To the extent
`“regular forces ” is interpreted to mean the standing, active -duty military, this
`interpretation, far from rendering the statute inoperable, explains precisely how and
`why § 12406(3) functions as Congress intended. Section 12406(3) provides:
`Whenever . . . the President is unable with the regular forces to execute
`the laws of the United States; the President may call into Federal
`service members and units of the National Guard of any State in such
`numbers as he considers necessary . . . to execute those laws.
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`10 U.S.C. § 12406(3).
`Parties and amici have argued that “ regular forces ” is natural ly and
`necessarily read as referring to active -duty military , and a micus concedes that
`“regular forces” is a term that has been used to describe the active- duty military.
`Perpich v. Dep’t of Def., 496 U.S. 334, 341- 42 (1990) (quoting First Annual Message
`to Congress, Dec. 3, 1901, 14 Messages and Papers of the Presidents 6672). But this
`interpretation—far from creating problems —explains precisely why § 12406(3)
`operates as Congress intended. Because the Posse Comitatus Act prohibits using those
`forces for domestic law enforcement, the President is “unable with the regular forces”
`to execute many federal laws, necessitating Guard federalization.
`Understanding how “ regular forces ” operates within § 12406 (3) requires
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`examining a critical constraint: the Posse Comitatus Act. 18 U.S.C. § 1385 prohibits
`anyone from willfully using any part of “ the Army, the Navy, the Marine Corps, the
`Air Force, or the Space Force . . . to execute the laws, ” “except in cases and under
`circumstances expressly authorized by the Constitution or Act of Congress. ” This
`statute, on its face, prohibits the use of the regular forces of the United States from
`engaging in law enforcement. T o use the military for such a purpose, therefore, the
`President must be able to properly invoke an express statutory authority. Otherwise,
`the standard armed forces of the United States are not one of the President ’s law
`enforcement tools.
`While the Act contains exceptions for situations “ expressly authorized by the
`Constitution or Act of Congress, ” those exceptions are narrowly construed , nor does
`a party claim that an exception applies here. When the Guard is federalized under §
`12406, it becomes part of the active military in certain respects, and can perform
`security missions under federal command. But critically, § 12406 does not authorize
`deployment of regular Army, Navy, Air Force, or Marine Corps personnel for civilian
`law enforcement. Those expressly identified forces remain constrained by Posse
`Comitatus. This creates the essential dynamic that makes § 12406 (3) operational:
`The President may be “unable with the regular forces to execute the laws ” precisely
`because Posse Comitatus ordinarily prohibits using the listed military forces for law
`enforcement. These forces may be “regular forces” in many senses; they exist and they
`are capable. But they cannot lawfully be deployed for the civilian law enforcement
`mission. When federal law prohibits deploying regular forces for a particular mission,
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`the President is “unable with” those forces to accomplish that mission—regardless of
`how many divisions sit idle at Fort Bragg. A President facing violent resistance to
`immigration enforcement cannot lawfully and ordinarily deploy the 82nd Airborne to
`arrest immigration violators, no matter how many paratroopers are available. The
`Posse Comitatus Act forbids it. The President is therefore “ unable with the regular
`forces” to execute immigration laws in that circumstance.
`The statutory phrase is “ unable with the regular forces,” not “unable because
`all regular forces have been exhausted. ” This distinction is fundamental to
`understanding how the statute operates. When federal law prevents regular forces
`from being deployed for a particular mission, the President is “ unable with” those
`forces to accomplish that mission—regardless of whether the forces theoretically exist
`elsewhere. It means that regular forces, in their ordinary capacity and subject to legal
`and practical constraints, cannot adequately address the domestic emergency. When
`that condition is satisfied, the President may invoke § 12406 to federalize the Guard.
`If “unable” were to mean “exhausted,” then the President would have to deploy
`regular forces before federalizing the Guard. But the Posse Comitatus Act expressly
`prohibits deploying those forces for the mission at hand; hence, the President cannot
`exhaust them—he cannot lawfully use them at all. Respondents’ interpretation would
`thus require the President to do what federal law forbids as a prerequisite to invoking
`his statutory authority. That makes no sense.
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`B. THE HISTORICAL TRADITION OF THE MILITIA ACTS
`DEMONSTRATES THAT PRESIDENTS HAVE BROAD AUTHORITY TO
`FEDERALIZE THE NATIONAL GUARD.
`History reinforces this understanding of the plain text. For more than two
`centuries, Presidents, as discussed below, have federalized militia forces to execute
`federal law when civilian enforcement proved inadequate—without first exhausting
`the standing Army. This unbroken practice confirms that “ unable with the regular
`forces” has never meant after exhausting every last soldier. Presidents have invoked
`militia authority when civilian law enforcement proved inadequate —regardless of
`whether the regular Army had been committed. Section 12406 stands at the end of a
`long statutory lineage extending to the Founding Era. See Oregon v. Trump, 2025
`U.S. App. LEXIS 27248, *49 (9th Cir. Oct. 20, 2025) (Nelson, J., concurring). The
`statutory history of militia authorizations set the stage for this practice.
`The Militia Act of 1792, enacted by the First Congress and signed by President
`Washington, stated:
`[t]hat whenever the laws of the United States shall be opposed or the
`execution thereof obstructed, in any state, by combinations too powerful
`to be suppressed by the ordinary course of judicial proceedings, or by the
`powers vested in the marshals by this act, the same being notified to the
`President of the United States, by an associate justice or the district
`judge, it shall be lawful for the President of the United States to call
`forth the militia to suppress such combinations, and to cause the laws
`to be duly executed.
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` Act of May 2, 1792, ch. 28, § 2, 1 Stat. 264.
`This statute implemented the Militia Clause and represented the Founding
`generation’s considered judgment about when federal military intervention in
`domestic affairs was appropriate. Understanding the historical application of this
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`statute and its successors illuminates the proper interpretation of § 12406 and
`demonstrates that the President’s invocation of the statute in this case falls squarely
`within established practice.
`The Militia Clause grants Congress power “ [t]o provide for calling forth the
`Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”
`U.S. Const. art. I, § 8, cl. 15. This provision reflected the Framers’ understanding that
`the militia —composed of citizen -soldiers who retained their civilian lives and
`occupations—would serve as a critical resource for domestic emergencies . The First
`Congress acted quickly to implement the Militia Clause. Congress first delegated its
`constitutional “calling forth” power to the President in the Militia Act of 1792, see ch.
`28, §§ 1-2, 1 Stat. 264, 264 (repealed 1795). Congress renewed that delegation in the
`Militia Act of 1795, see ch. 36, § 1, 1 Stat. 424, 424 . The 1795 Act was a precursor to
`the Militia Act of 1903, see Pub. L. No. 57-33, §§ 1, 4, 32 Stat. 775, 775-76, which is a
`precursor to § 12406.
`The Militia Act of 1792 authorized presidential deployment of militia forces
`when federal law could not be executed through ordinary judicial proceedings.
`Significantly, the statute did not require proof that every other resource had been
`exhausted. It required only a determination that combinations opposed or obstructed
`federal law and were “too powerful to be suppressed by the ordinary course of judicial
`proceedings.” Act of May 2, 1792, ch. 28, § 2, 1 Stat. 264.
`The 1792 Act was soon tested. In 1791, Congress enacted a federal excise tax
`on distilled spirits to help pay Revolutionary War debts. See A
`KHIL REED AMAR, THE
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`WORDS THAT MADE US 382-85 (2021). Farmers in western Pennsylvania, who distilled
`excess grain into whiskey, viewed the tax as oppressive and unfair. Id. Rather than
`seeking redress through the political process, they responded with violence. Id. at
`382. Tax collectors were tarred and feathered. An armed force of several thousand
`protesters assembled and marched on Pittsburgh, threatening to burn the city. Id.
`Federal officials could not safely perform their duties. The federal excise law could
`not be executed in western Pennsylvania.
`President Washington concluded that the situation required militia
`intervention. In August 1794, he issued a proclamation invoking the Militia Act and
`calling up approximately 13,000 militia members from Pennsylvania, New Jersey,
`Maryland, and Virginia. Wa shington personally led this force into western
`Pennsylvania, and the show of overwhelming federal power quickly dispersed the
`rebels without significant bloodshed. Id.
`This Whiskey Rebellion established critical precedents that remain relevant
`today. First, militia deployment was appropriate even though the violence was
`localized to a specific region and directed at enforcement of a single federal law (the
`whiskey tax) rathe r than at the government as a whole. Second, the President ’s
`determination that militia forces were necessary was not questioned by Congress, the
`courts, or contemporary commentators. Washington did not have to prove that every
`marshal and federal judge had been assaulted, or that federal authority had
`completely collapsed, before invoking militia authority. He determined that federal
`officials could not safely execute the whiskey tax laws, and that determination was
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`accepted as within his discretion. Third, n o one suggested that Washington was
`required to deploy all available regular Army forces before calling up the militia.
`Washington did not first commit every soldier before invoking militia authority. The
`militia was understood as an appropriate resource f or domestic disturbances even
`when regular forces existed.
`Fries’s Rebellion in 1799 reinforced these lessons. In response to a federal
`property tax enacted to fund potential war with France, farmers in eastern
`Pennsylvania intimidated tax assessors and prevented them from performing their
`duties. Frederic D. O ’Brien, The Fries Rebellion , AMERICAN HERITAGE (Apr. 1999),
`https://perma.cc/H8EF-CN4S. In the most serious incident, John Fries led a group
`that freed tax resisters from federal custody. Id. The federal marshals could not
`contain the violence in this geographic area and ensure federal law was faithfully
`executed. Oregon v. Trump, 2025 U.S. App. LEXIS 27248, *53. “All in all, this unrest
`never exceeded more than 150 men. ” Id. at *52. President Adams invoked militia
`authority and deployed 500 federal troops to restore order. Id. at *53. The deployment
`was successful—federal authority was restored without significant bloodshed, and
`the tax laws could again be executed.
`Fries’s Rebellion demonstrates that militia authority extends to relatively
`small-scale disturbances when those disturbances prevent execution of federal law.
`The rebels numbered no more than 150 scattered across several counties. Yet no one
`questioned Adams ’s authority to deploy federal troops. The critical fact was that
`federal officials could not safely execute the tax laws —not the scale of the rebellion
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`or the number of rebels involved.
`These historical precedents are directly applicable to the present case. In both
`the Whiskey Rebellion and Fries’s Rebellion, citizens used violence and intimidation
`to prevent federal officials from executing federal laws they opposed. Federal tax
`collectors in the 1790s faced the same kinds of threats that ICE officers face today:
`physical assault, property destruction, and threats to their families. The fact that
`modern protesters might be characterized by some as “activists” rather than “rebels”
`does not change the fundamental reality that federal officials cannot safely perform
`their duties in the face of organized violent resistance.
`Judge Nelson ’s concurring opinion in Oregon v. Trump properly recognized
`these parallels:
`President Trump’ s September 28 deployment falls within the history
`and tradition of the early Militia Acts. Individuals within a group of
`about 200 people have engaged in violent activity in opposition to a
`single set of laws that carry out federal immigration enforcement .
`Rather than try to enact political change through the ballot box, they
`have assaulted the federal officers in Portland who enforce those laws
`and other Americans who disagree with them on the wisdom of those
`laws. They tried to burn down a federal building and forced that building
`to close for three weeks.
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`Oregon, 2025 U.S. App. LEXIS 27248, *54-55 (Nelson, J., concurring).
`If Presidents Washington and Adams properly invoked militia authority to
`suppress violent resistance to federal tax collection, then President Trump properly
`invoked § 12406 (3) to protect federal immigration facilities and personnel from
`violent attacks designed to prevent execution of federal immigration laws.
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`C. PRESIDENTIAL DETERMINATIONS UNDER THE MILITIA ACTS ARE
`UNREVIEWABLE.
`This Court has twice held that presidential determinations under the Militia
`Acts are conclusive and unreviewable. Martin v. Mott , 25 U.S. 19 (1827) ; Luther v.
`Borden, 48 U.S. 1 (1849). Under those two cases, whether the President has lawfully
`invoked § 12406 presents a political question the courts cannot review. The
`Constitution assigns to Congress and the President the power to determine when to
`call the National Guard to federal service, and that determination is not reviewable
`in court. Once Congress has authorized the President to call forth the militia when
`certain exigencies are present, this Court has emphasized that “ the authority to
`decide whether the exigency has arisen, belongs exclusively to the President, and that
`his decision is conclusive upon all other persons.” Martin, 25 U.S. at 30.
`In Martin, 25 U.S. 19, th is Court addressed the scope of judicial review of
`presidential decisions under the Militia Act of 1795. The case arose during the War
`of 1812, when President Madison invoked the Militia Act to call up state militias for
`national defense. Jacob Mott, a private in the New York militia, refused to report for
`duty. See 25 U.S. at 28. He was court -martialed and fined, and the State seized his
`property to satisfy the debt. Id. Mott then brought an action for replevin in state
`court, arguing that the seizure was il legal because President Madison ’s order
`federalizing the militia was invalid. See id.
`The lower court agreed with Mott, holding that courts could review whether
`the President had correctly determined that an invasion or imminent danger of
`invasion existed. This Court reversed. Writing for a unanimous Court, Justice Story
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`cut to the heart of the matter. The Militia Act gave Congress’s calling-forth power to
`the President “[when] the exigency” requiring militia intervention “has arisen.” Id. at
`29. That delegation raised a fundamental question: “ by whom is the exigency to be
`judged of and decided?” Id. at 29-30.
`The answer could not be left to individual officers or militiamen. If every person
`subject to militia orders could decide for himself whether the statutory conditions
`were satisfied, military operations would become impossible. Neither could the
`answer be left to courts. Judicial review of whether an invasion threatened would
`paralyze the national defense. The Court answered that question by stating that “the
`authority to decide whether the exigency has arisen, belongs exclusively to the
`President, and that his decision is conclusive upon all other persons.” Id. at 30.
`This conclusion rested on two foundations. First, the nature of the power itself.
`Military operations “ upon sudden emergencies, upon great occasions of state, and
`under circumstances which may be vital to the existence of the Union” require
`immediate response. Id. “[E]very delay, and every obstacle to an efficient and
`immediate compliance, necessarily tend to jeopardize the public interests.” Id. Courts
`cannot review such decisions without undermining their effectiveness.
`Second, the statutory text. The Court explained that “ the language of the act
`of 1795” supported its “ conclusion drawn from the nature of the [delegated] power
`itself.” Id. at 31. The Court followed the “sound rule of construction” that “[w]henever
`a statute gives a discretionary power to any person, to be exercised by him upon his
`own opinion of certain facts, . . . the statute constitutes him the sole and exclusive
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`judge of the existence of those facts. ” Id. at 31-32 (emphasis added). The Militia Act
`of 1795 authorized the President to call forth the militia when he may judge
`necessary. That language committed the determination to presidential discretion.
`“The law does not provide for any appeal from the judgment of the President, or for
`any right in subordinate officers to review his decision, and in effect defeat it.” Id. at
`31.
`Martin thus established a categorical rule: When Congress authorizes the
`President to deploy the national guard based on his determination that specified
`conditions exist, that determination is unreviewable. Courts have no authority to
`second-guess whether the President correctly assessed the facts or properly invoked
`his statutory authority. Justice Story explained that this allocation of authority was
`essential to the constitutional scheme and concluded that the President alone must
`make this determination:
`We are all of opinion, that the authority to decide whether the exigency
`has arisen, belongs exclusively to the President, and that his decision is
`conclusive upon all other persons. We think that this construction
`necessarily results from the nature of th e power itself, and from the
`manifest object contemplated by the act of Congress.
`
`Id. at 30.
`Twenty-two years later, the Supreme Court reaffirmed Martin in Luther v.
`Borden, 48 U.S. (7 How.) 1 (1849) . Luther arose from the Dorr Rebellion in Rhode
`Island, a conflict between competing claimants to state governmental authority.
`President Tyler determined that the charter government was the legitimate
`government and authorized use of militia if necessary to suppr ess the rebellion. Id.
`
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`16
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`at 43. Plaintiffs argued that courts could review whether the charter government was
`in fact the lawful government and whether President Tyler properly determined that
`a rebellion existed. Id. Chief Justice Taney, writing for the Court, held that both
`determinations were unreviewable political questions.
`On the militia question, the Court relied squarely on Martin . The Militia Act
`of 1795 gave “the power of deciding whether the exigency had arisen . . . to the
`President.” Id. The Court made the implication clear:
`After the President has acted and called out the militia, is a Circuit
`Court of the United States authorized to inquire whether his decision
`was right? . . . If the judicial power extends so far, the guarantee
`contained in the Constitution of the United St ates is a guarantee of
`anarchy, and