State of Oregon v. Trump

Opinion

FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 8 2025

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

STATE OF OREGON; CITY OF No. 25-6268 PORTLAND, D.C. No. 3:25-cv-01756-IM Plaintiffs - Appellees, District of Oregon, Portland v. AMENDED ORDER DONALD J. TRUMP, In his official capacity as President of the United States; PETER HEGSETH, In his official capacity as Secretary of Defense; UNITED STATES DEPARTMENT OF DEFENSE; KRISTI NOEM, In her official capacity as Secretary of Homeland Security; UNITED STATES DEPARTMENT OF HOMELAND SECURITY,

Defendants - Appellants,

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STATE OF CALIFORNIA,

Intervenor - Pending.

MURGUIA, Chief Judge: (Statement by Judge Bybee, Statement by Judge Tung)

The order filed on October 28, 2025, Dkt. No. 89, taking this case en banc is

amended as follows to append Judge Bybee’s statement in support of en banc

review and Judge Tung’s statement respecting the grant of rehearing en banc: Upon the vote of a majority of nonrecused active judges, it is ordered that

this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 40(c)

and Circuit Rule 40-3. The order published at 157 F.4th 1013 (9th Cir. 2025), is

vacated.

2 25-6268 FILED DEC 8 2025 State of Oregon v. Trump, No. 25-6268 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS BYBEE, J., Senior Circuit Judge, statement in support of en banc review: I have issued this statement in support of en banc review—a statement that is

unusual, but not unprecedented 1—because I believe that the parties have overlooked

a clause in the Constitution that is of great relevance to the resolution of this case:

the Domestic Violence Clause. U.S. Const. art. IV, § 4. As I have documented

below, the Domestic Violence Clause was interwoven with the Militia Clause in the

debates framing the Constitution, the ratification debates and early commentary, and

throughout the history of the President’s use of the Militia. In issuing this statement,

I take no position on the ultimate merits of this case. But I do introduce critical

historical context that I hope provides a new lens through which to analyze the

constitutional limitations on the President’s militia powers. In particular, I urge the

en banc panel to rethink the standard we adopted in Newsom v. Trump: that we defer

to the President’s determination to send the National Guard into a state over its

objection so long as that determination “reflects a colorable assessment of the facts

and law within a ‘range of honest judgment.’” 141 F.4th 1032, 1051 (9th Cir. 2025)

1 See, e.g., United States v. Duarte, 108 F.4th 786 (9th Cir. 2024) (VanDyke, J., dissenting from the grant of rehearing en banc); Feldman v. Ariz. Sec’y of State’s Off., 841 F.3d 791 (9th Cir. 2016) (Reinhardt, J., concurring in the grant of rehearing en banc); Henry v. Ryan, 766 F.3d 1059, 1060 (9th Cir. 2014) (W. Fletcher, J., concurring in the grant of rehearing en banc); id. at 1067 (Tallman, J., dissenting from the grant of rehearing en banc); United States v. Bowen, 485 F.2d 1388 (9th Cir. 1973) (Chambers, J., dissenting from the grant of rehearing en banc). (quoting Sterling v. Constantin, 287 U.S. 378, 399 (1932)). I do not believe that

standard reflects the Constitution’s allocation of authority over domestic violence

between the states and the United States. To that end, I have offered some thoughts

as to what the appropriate standard of review might be.

I. INTRODUCTION

The Framers of the Constitution were deeply concerned with two issues. First,

they were concerned that the United States have sufficient authority to defend the

nation and its own laws. Second, they were concerned that the conferral of such

power not usurp the states’ primary responsibility for addressing crime, riots, and

other lawless actions. “It is no easy thing to establish a republican military powerful

enough to protect against foreign enemies and domestic insurrections, without

creating the danger to which all too many republics have succumbed: that the man

on the white horse will seize the reins of power.” Michael W. McConnell, The

President Who Would Not Be King 205 (2020). These were among “the central

concerns of the Anti-Federalists about the new national government in general and

the presidency in particular.” Id.

2 25-6268 The solution to the first issue was found in the Militia Clause, which is the

source of authority for 10 U.S.C. § 12406, the statute at issue in this case.2 Article

I, Section 8, Clause 15 provides:

[Congress shall have Power] . . . [t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.

But that grant of power raised an important question: “[W]hat will be a reasonable

guard” against “the national, . . . swallow[ing] up the State[?]” 1 The Records of the

Federal Convention of 1787 at 60 (Max Farrand ed., 1911) [hereinafter Farrand’s

Records] (statement of George Mason). As George Mason warned at the Virginia

Ratifying Convention, “[t]he meeting of three or four persons might be called an

insurrection; and the militia might be called out to disperse them.” 3 The Debates

in the Several State Conventions on the Adoption of the Federal Constitution 415

(Jonathan Elliot ed., 2d ed., 1996) (1836) [hereinafter Elliot’s Debates].

2 While I refer only to the first of the two Militia Clauses throughout this statement, the second of the Militia Clauses, Article I, Section 8, Clause 16, also underscores the federalist structure of the Militia, empowering the federal legislature “[t]o provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States,” while expressly “reserving [power] to the States” for the “Appointment of the Officers” and the “training [of] the Militia according to the discipline prescribed by Congress.” See also Houston v. Moore, 18 U.S. (5 Wheat.) 1, 16–17 (1820) (“But as State militia, the power of the State governments to legislate on the same subjects, having existed prior to the formation of the constitution, and not having been prohibited by that instrument, it remains with the States, subordinate nevertheless to the paramount law of the general government, operating upon the same subject.”).

3 25-6268 The solution to the second issue and to George Mason’s question was the

Domestic Violence Clause in Article IV, Section 4, which provides:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

The Clause’s phrasing directly inverts the Declaration of Independence’s grievance

that the King “kept among us . . . Standing Armies without the Consent of our

legislatures.” The Declaration of Independence ¶ 13 (emphasis added).

The Militia and Domestic Violence Clauses were to be read together to keep

the federal government and the states in their respective lanes. As St. George Tucker

explained, “every pretext for intermeddling with the domestic concerns of any state,

under colour of protecting it against domestic violence is taken away, by that part of

the provision which renders an application from the legislative, or executive

authority of the state endangered, necessary to be made to the federal government,

before [its] interference can be at all proper.” St. George Tucker, 1 Blackstone’s

Commentaries: With Notes of Reference to the Constitution and Laws of the Federal

Government of the United States and of the Commonwealth of Virginia App. at 366–

67 (1803); see Joseph Story, 3 Commentaries on the Constitution of the United States

§ 1819 (1833) (adopting Tucker’s formulation).

This case is not about whether the United States has the power to enforce its

own laws. It surely does. It is about the circumstances under which the United

4 25-6268 States can do so by calling forth the Militia, whether the President has the authority

to deploy troops into states against their wishes, and whether the judiciary can

determine if the President is “intermeddling” on pretext.

II. THE DOMESTIC VIOLENCE CLAUSE AS A LIMITATION ON THE MILITIA CLAUSE

The Framers divided the duty to secure the peace between the federal

government and the states. As Justice Kennedy memorably put it, “[t]he Framers

split the atom of sovereignty.” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838

(1995) (Kennedy, J., concurring). The federal government was given the duty to

protect us from foreign threats, while the states retained the primary duty to protect

us from internal threats, such as crime and riots. The Preamble reflects this

allocation. The Constitution was established to “insure Domestic Tranquility,

provide for the common defense, [and] promote the general welfare.” U.S. Const.

pmbl. The verbs “insure,” “provide,” and “promote” are not mere elegant variation,

but concise descriptions of the respective roles of the states and the federal

government. The word “insure” makes the federal government the guarantor of

domestic tranquility, not its primary provider or a concurrent promoter. “Insure,” in

this context, is the language of suretyship; it is a pledge of support, not a grant of

agency.

The Preamble’s promise to “insure Domestic Tranquility” thus reflects a

careful delineation of permissible federal military intervention in domestic affairs:

5 25-6268 States are not only owed protection by the federal government, they are owed

protection from it. Although long overlooked, the Domestic Violence Clause plays

a central role in constraining the federal government’s power under the Militia

Clause. That balance must inform our interpretation of § 12406.

A. Section 12406 and the Militia and Domestic Violence Clauses

Section 12406 provides:

Whenever— (1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation; (2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or (3) 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 repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governors of the States . . . .

10 U.S.C. § 12406. Section 12406 is simply a delegation of Congress’s enumerated

powers over the Militia, as it lists, in reverse order, Congress’s power “[t]o provide

for calling forth the Militia to [1] execute the Laws of the Union, [2] suppress

Insurrections and [3] repel Invasions.” U.S. Const. art. I, § 8, cl. 15.

Section 12406 is constrained by the Domestic Violence Clause. Again,

Article IV, Section 4 reads: “The United States shall guarantee to every State in this

Union a Republican Form of Government, and shall protect each of them against

Invasion; and on Application of the Legislature, or of the Executive (when the

6 25-6268 Legislature cannot be convened) against domestic Violence.” In addition to the

republican guarantee, this provision enumerates two protections. The first is

protection “against Invasion” from another state or nation, which is required because

the Constitution simultaneously forbids the states from “engag[ing] in War unless

actually invaded, or in such imminent Danger as will not admit of delay.” Id. art. I,

§ 10, cl. 3. The second is protection “against domestic Violence.” But unlike the

Republican Guarantee Clause and the Invasion Clause, the Domestic Violence

Clause does not impose a free-standing obligation on the United States. Rather, it is

a conditional obligation, one that turns on a request from the state.

Though the phrase “domestic Violence” is neither defined nor a term of art, it

can be understood from the broader context of the Constitution. The Constitution

uses five other terms to express resistance to or disregard for law: crime,

insurrection, rebellion, invasion, and war. See, e.g., U.S. Const. art. I, § 8, cl. 15

(“Insurrections” and “Invasions”); art. I, § 8, cl. 11 (“War”); amend. XIV, § 2

(“rebellion” and “crime”). As the Constitution expressly denies to the states the right

to engage in war or repel invasion, art. I, § 10, cl. 3, “domestic Violence” refers to

matters within a state, including crime, riot, and insurrection or rebellion against the

state. Congress may respond directly to any external threat to a state, but Congress

has limited power to respond to an internal threat to a state.

7 25-6268 The Constitution has reserved to the states the right to manage their own

internal affairs, including the power to punish crime, suppress insurrections, and

stifle rebellions. Except in unusual circumstances, discussed below, the United

States may intervene to quell domestic violence within a state only when it is invited

by the state’s legislature or the governor. In Hohfeldian terms, the Domestic

Violence Clause is both a privilege of the states to call upon the resources of the

United States, and an immunity from federal interference in state matters touching

on “domestic Violence.” Stated differently, the Militia Clause is the Constitution’s

grant of authority to Congress to use the Militia in response to a request for assistance

under the Domestic Violence Clause. The Militia Clause facilitates the use of the

Militia; the Domestic Violence Clause conditions its use. The Domestic Violence

Clause thus preserves a vertical separation of powers when dealing with domestic

disturbances.

To understand the limitations on the federal government’s engagement with

the sovereign states through military force, we must turn our attention to the original

understanding of the Domestic Violence Clause and its dialogue with the Militia

Clause.3

3 The literature on the constitutional place of the Domestic Violence Clause is surprisingly thin. Principal sources include William M. Wiecek, The Guarantee Clause of the U.S. Constitution (1972); and Jay S. Bybee, Insuring Domestic Tranquility: Lopez, Federalization of Crime, and the Forgotten Role of the Domestic Violence Clause, 66 Geo. Wash. L. Rev. 1 (1997). For historical accounts of the

8 25-6268 B. The Framers’ Concerns

1. The Philadelphia Convention

Through vigorous debate and compromise, the delegates to the Philadelphia

Convention ensured that the federal government would have enough military power

to protect the states when necessary, but not so much that it could override the states’

primary responsibility for handling civil disorder. Luther Martin set the tone for this

delicate balance by acknowledging that the “general government ought to protect

and secure the state governments.” 1 Farrand’s Records 439. But he also assured

that “[s]tates will take care of their internal police and local concerns. The general

government has no interest, but the protection of the whole.” Id.

From the outset, the Convention treated what would become the Domestic

Violence and Militia Clauses as closely linked. Charles Pinckney’s original proposal

ensured protection to states from “domestic insurrection” and “rebellion” “on

application of the legislature of a state,” while also granting the national legislature

the power to arm and organize the Militia. 5 Elliot’s Debates 130–32. Early drafts

invocation of the Domestic Violence Clause, see Frederick T. Wilson, U.S. Army, Federal Aid in Domestic Disturbances 1787–1903, S. Doc. No. 57-209 (1903); Office of the Judge Advocate Gen., Federal Aid in Domestic Disturbances 1903– 1922, S. Doc. No. 67-263 (1922); Robert W. Coakley, The Role of Federal Military Forces in Domestic Disorders 1789–1878 (1988); Clayton D. Laurie & Ronald H. Cole, The Role of Federal Military Forces in Domestic Disorders 1877–1945 (1997); Paul J. Scheips, The Role of Federal Military Forces in Domestic Disorders 1945–1992 (2005).

9 25-6268 of the Constitution authorized Congress “[t]o subdue a rebellion in any particular

state, on the application of the legislature thereof” and “[t]o make Laws for calling

forth the Aid of the Militia, to execute the Laws of the Union[,] to repel Invasion[,]

to inforce Treaties[,] [and to] suppress internal [Commotions].” 2 Farrand’s Records

144; see also 2 id. 168 (similar). As concerns grew about federal overreach in the

states’ internal affairs, James Wilson emphasized that the “object” of the guarantee

of protection was “merely to secure the States [against] Dangerous commotions,

insurrections and rebellions.” 2 id. 47. The delegates then voted, on Madison’s

suggestion, to limit the protection to “domestic as well as foreign violence.” 2 id.

47–49.

The Committee of Detail’s early-August draft further refined the arrangement:

Congress would be granted general militia powers and the power “[t]o subdue a

rebellion in any State, on the application of its legislature,” while the Domestic

Violence Clause added the condition “on application of its legislature” before

“domestic violence,” which the new draft distinguished from “foreign invasion.”

See 2 id. 159, 182. Once that condition was added, Congress’s power to subdue

rebellions upon a state’s application became redundant and was eliminated by mid-

August. See 2 id. 317–20. Edmund Randolph’s handwritten notes position the

Domestic Violence Clause’s purpose as “protect[ing] each state against internal

10 25-6268 commotion . . . [b]ut . . . not . . . without an application from the legislature of a

state.” 2 id. 148 (emphasis added).

The guardrail of a state’s request figured prominently at the Convention.

When South Carolina’s Thomas Pinckney moved to eliminate “on the Application

of its legislature,” his motion immediately spurred objections from several delegates.

2 Farrand’s Records 316–18. Luther Martin insisted that “[t]he consent of the State

ought to precede the introduction of any extraneous force whatever.” 2 id. 317.

Oliver Ellsworth agreed that “[i]n many cases,” the federal government “ought not

to be able to interpose unless called upon.” Id. Elbridge Gerry, who had witnessed

the turmoil of Shays’s Rebellion in his home state, was particularly opposed to

“letting loose the myrmidons of the U[nited] States on a State without its own

consent.” Id. He emphasized the “[s]tates will be the best Judges in such cases”

and, referring to Shays’s Rebellion, suggested that “[m]ore blood would have been

spilt . . . if the [federal government] had intermeddled” in the state’s affairs without

its request for assistance. 2 id. 317.

In late August 1787, Delaware’s John Dickinson, repeating earlier objections,

made one last attempt to delete the requirement that a state’s legislature must request

federal intervention. 2 id. 467. By a vote of eight to three, the delegates refused to

drop the condition. Id. Dickinson then proposed a more moderate expansion: allow

the request to come from the state’s “Executive” because “[t]he occasion itself . . .

11 25-6268 might hinder the Legislature from meeting.” 2 id. 467. It passed overwhelmingly

(8 yes, 2 no, 1 divided). Id. After the Committee of Style presented the penultimate

draft, the delegates, in the final days of the convention, slightly reverted on this

expansion by narrowing when the Executive could make the request to “when the

Legislature cannot be Convened.” 2 id. 621.

Thus, consistent with the Framers’ concern of ensuring protection while also

preventing unwanted federal military intervention in domestic affairs, the Domestic

Violence Clause authorizes federal aid only “on Application of the Legislature, or of

the Executive (when the Legislature cannot be convened).” U.S. Const. art. IV, § 4.

This textual guardrail was born of the Framers’ fear of an unbounded national army

and unwarranted federal intervention. The Framers’ unwillingness to omit it speaks

to their intent to ensure the national government does not intervene militarily absent

a state’s request.

2. The Ratification Debates

The Framers’ concerns about federal overreach into state affairs similarly took

center stage during the ratifying conventions, with the Virginia debates exemplifying

common anxieties that the Militia Clause would give Congress a cudgel against the

states and their people. Representing the Anti-Federalists, Patrick Henry remarked

that he was “still persuaded that the power of calling forth the militia, to execute the

laws of the Union” was “dangerous.” 3 Elliot’s Debates 411.

12 25-6268 Having requested that James Madison clarify “the cases where the militia

would be wanting to execute the laws,” Henry emphasized the risk of pretextual

justifications: “[Madison] told us the militia may be called out to quell riots. . . .

Who are to determine whether it be a riot or not? Those who are to execute the laws

of the Union? If they have power to execute their laws in this manner, in what

situation are we placed!” Id. at 411–12. Henry further underscored the dangers of

granting the national government such a sweeping permit to mobilize the Militia,

noting the “unprecedented” nature of “calling the militia to enforce every execution

indiscriminately.” Id. at 412.

In response, Madison contended that the Militia represented a “more proper

way” to manage external invasions and internal insurrections and to execute the

laws, as compared to a standing army. Id. at 413–14. But Madison’s defense of the

Militia Clause also demonstrated his grasp of its limits. Specifically, Madison

argued that “[t]here is a great deal of difference between calling forth the militia,

when a combination is formed to prevent the execution of the laws, and the sheriff

or constable carrying with him a body of militia to execute them in the first instance;

which is a construction not warranted by the clause.” Id. at 415 (emphasis added).

To expound on the constrained set of circumstances justifying Militia

federalization to execute the laws of the Union, Madison proffered examples where

the unlawful actors “were too formidable for the civil power to overcome.” Id. at

13 25-6268 414. And when Henry Clay expressed fears that the Militia Clause might enable the

Kentucky Militia to “be sent to the Mississippi” and “would lead to the establishment

of a military government, as the militia were to be called forth to put the laws into

execution,” Madison answered that the power may be resorted to only “[i]f the posse

of one county were insufficient to overcome the resistance to the execution of the

laws.” Id. at 384. But it was “obvious” to Madison that “when the civil power was

sufficient, this mode would never be put in practice.” Id.

Madison’s delineation of acceptable and unacceptable applications of the

Militia Clause supports two principles that should guide our understanding of its

scope. First, as Congress’s power over the Militia was thought of as a less dangerous

alternative to using a standing army to enforce the laws, deployment of the National

Guard should be limited to scenarios akin to those where armed forces are warranted.

Second, the Militia should be called forth by the federal government only as a last

resort when the civil force is unable to quell resistance to the laws, rather than as a

supplemental or substitute source of ordinary law enforcement and crime control.

This understanding also has roots in the Framers’ concerns about pretext.

After Madison disavowed the notion that the Militia could be used to enforce laws

in the first instance, George Mason raised a related objection that “too much power

was given to Congress,—power that would finally destroy the state governments,

more effectually by insidious, underhanded means, than such as could be openly

14 25-6268 practised.” Id. at 415. In Mason’s view, “because the state governments could call

forth the militia when necessary, so as to compel a submission to the laws; and as

they were competent to it, Congress ought not to have the power.” Id. Otherwise,

he argued, “[t]he meeting of three or four persons might be called an insurrection;

and the militia might be called out to disperse them.” Id.

The debate then transitioned from the Militia Clause to the Domestic Violence

Clause, with Patrick Henry again expressing concern that the combined authority of

the Domestic Violence Clause and the Militia Clause gave Congress exclusive

control of the Militia. But Madison argued that the states had concurrent authority

to call forth their own militias, instead characterizing the Domestic Violence Clause

as providing states, upon their request, with “supplemental security to suppress

insurrections and domestic violence.” Id. at 425. Edmund Pendleton, President of

the Virginia Ratifying Convention, supported Madison’s interpretation by similarly

describing the Domestic Violence Clause as a restricted grant of power to Congress:

“This is a restraint on the general government not to interpose. The state is in full

possession of the power of using its own militia to protect itself against domestic

violence; and the power in the general government cannot be exercised, or

interposed, without the application of the state itself.” Id. at 441 (emphasis added).

The same understanding was present during other state ratifying debates, such as

those in Massachusetts, where James Bowdoin listed the Domestic Violence Clause

15 25-6268 as one of several “checks” should the “great power” of Congress “be abused, and,

instead of protecting, . . . be employed by Congress in oppressing, their

constituents.” 2 Elliot’s Debates 85–86.

The Framers’ understanding of this interplay between the Militia Clause and

the Domestic Violence Clause reveals the constitutional principles that should

circumscribe their operation. Congress may deploy the Militia to execute federal

laws, but only as a last resort when civil forces prove inadequate, and—with limited

exceptions implicating individual rights, as discussed below—only upon a state’s

request.4

4 Congress has codified similar limiting principles in its various invocations of the Militia Clause. The Militia Act of 1792 allowed the President to call forth the Militia only when execution of the laws was obstructed by “combinations too powerful to be suppressed by the ordinary course of judicial proceedings.” Act of May 8, 1792, 1 Stat. 271. The Insurrection Act includes near-identical language. See 10 U.S.C. § 252 (allowing the President to activate the Militia when it becomes “impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings”). And just as the Framers understood the Domestic Violence Clause to constrain Congress’s militia power, the Militia Act echoed the Clause’s language in granting the President qualified control over the Militia in cases of insurrection. Act of May 8, 1792, 1 Stat. 271. (“[I]n case of an insurrection in any state, against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such state, or of the executive (when the legislature cannot be convened) to call forth such number of the militia . . . .”).

16 25-6268 3. The Federalist Papers

The Federalist Papers furnish further evidence regarding the Framers’

restrictions on federal deployment of the Militia into the states. In Federalist 29,

Alexander Hamilton answered a claim from the Anti-Federalists that the states ought

“to apprehend danger from the militia itself in the hands of the federal government.”

The Federalist No. 29, at 133 (Terence Ball, ed., 2003). To Hamilton, such a claim

was “so far fetched and so extravagant . . . that one is at a loss whether to treat it with

gravity or with raillery.” Id. at 135.

Hamilton then turned to what he considered to be “exaggerated suggestions”

that the Militia of New Hampshire would “be marched to Georgia, of Georgia to

New-Hampshire, of New-York to Kentucke and of Kentucke to Lake Champlain.”

Id. He discounted the notion that the federal government would use the Militia in

this manner “to lay prostrate the liberties of the people” as rhetorical “conceits” and

“absurdities,” utterly detached from the text of the Constitution. Id. at 136. There

may be occasions, he added, when “it would be natural and proper that the militia of

a neighbouring state should be marched into another,” but these would be “[i]n times

of insurrection or invasion.” Id. For Hamilton, Anti-Federalist fears that the federal

government would abuse the power to call forth the Militia, overriding the will of

the states, were so far removed from the meaning of this text that they were irrational.

Id. at 135.

17 25-6268 In Federalist 21, Hamilton further detailed the guarantee of sovereignty that

a federalized military could provide to the states, citing Shays’s Rebellion as

evidence of this guarantee’s importance “in repelling . . . domestic dangers.” The

Federalist No. 21, at 95. Shays’s Rebellion proved the “dangers” of a constitution

that withholds power from the federal government to aid a state suffering the threats

of a “successful faction.” Id. During this rebellion, in which thousands of former

Revolutionary War soldiers organized in an armed revolt in Massachusetts,

Governor Bowdoin had sought assistance from the Continental Congress, but to no

meaningful avail. See Leonard Richards, Shays’s Rebellion: The American

Revolution’s Final Battle (2002). As Hamilton noted in Federalist 26, the governor

was thus “compelled to raise troops” himself, turning to a private army to quell the

disturbance. The Federalist No. 26, at 118. The Constitution, Hamilton emphasized,

would rightfully allow the federal government to respond to a state’s requests for

aid.

The Federalist Papers also spotlight concerns about the potential pretextual

use of federal power. Madison, in Federalist 43, responded to Anti-Federalist fears

that federal authority would “become a pretext for alterations in the State

governments, without the concurrence of the States themselves” by explaining that

the Constitution expressly safeguarded against unwarranted interference. The

Federalist No. 43, at 212. In Federalist 21, Hamilton rejected concerns of “officious

18 25-6268 interference in the domestic concerns” of the States by emphasizing the exceptional

nature of federal intervention. The Federalist No. 21, at 95. So long as a state

maintains its republican political processes, the federal government has “less

pretense” to impose “violent remedies in partial or occasional distempers of the

State.” Id. Those disturbances are for the states to address. Collectively, these

essays foreclosed the idea that the Constitution could authorize federal military

intervention based on fabricated justifications that ignore carefully constructed

vertical separation of powers limitations.

C. The Historical Practice

The decades following the Constitution’s ratification tested its limits on the

federal government’s ability to deploy troops to respond to domestic challenges. In

particular, four events in those early years establish the precedent for future

presidents, furnishing us with a historical “gloss” on the words of the Constitution.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J.,

concurring). The proximity of the Whiskey Rebellion, the Trans-Oconee Republic,

Fries’s Rebellion, and the Baltimore riots of 1812 to the Constitution’s ratification—

and the fact that the presidents responding to these crises were George Washington,

John Adams, and James Madison—is powerful evidence of, in Madison’s striking

phrase, a “liquidation” of Constitutional meaning. The Federalist No. 37, at 172; see

NLRB v. Noel Canning, 573 U.S. 513, 524 (2014) (“[W]e put significant weight upon

19 25-6268 historical practice.”) (emphasis omitted); id. at 572 (Scalia, J., concurring in the

judgment) (“[W]here a governmental practice has been open, widespread, and

unchallenged since the early days of the Republic, the practice should guide our

interpretation of an ambiguous constitutional provision.”). Such “early history”

gives us insight into how “the Framers themselves . . . read the Constitution.”

Mistretta v. United States, 488 U.S. 361, 398 (1989); see also Akhil Reed Amar,

America’s Unwritten Constitution: The Precedents and Principles We Live By 309

(2012); William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019).

To clarify how history and tradition have aligned with that original

understanding, I will then consider the pre-Civil War and post-Civil War periods.

See Noel Canning, 573 U.S. at 584–93, 602–13 (Scalia, J., concurring in the

judgment) (reviewing various historical periods). Though these examples implicate

various statutes—many of which were predecessors to the modern-day Insurrection

Act and § 12406—they illustrate the constitutional constraints that apply regardless

of the purported statutory basis for a president’s domestic deployment of the Militia.

These examples are not comprehensive and include two outlier cases that are not

consistent with the early practice. But collectively, they illustrate that presidents

have consistently understood the militia power to be constrained by the Domestic

Violence Clause. Finally, I will address how we should consider the Fourteenth

Amendment in conjunction with the Domestic Violence Clause.

20 25-6268 1. The Early Period, 1789–1812

a. The Whiskey Rebellion (Washington)

The government’s handling of the Whiskey Rebellion demonstrates careful

negotiation between federal and state authorities, not unfettered presidential

discretion to use the Militia against a state’s wishes—even when federal interests are

at stake. From 1791 to 1794, western Pennsylvanians formed an organized

resistance preventing the collection of federal whiskey taxes. Thousands of

Pennsylvanians “resisted by brutalizing and terrorizing federal tax collectors and

their local supporters with tar and feathers, torches, whips, guns, and more.” Akhil

Reed Amar, The Words That Made Us 382 (2021). This three-year revolt was “[t]he

single largest example of armed resistance to a law of the United States between the

ratification of the Constitution and the Civil War.” Thomas P. Slaughter, The

Whiskey Rebellion 5 (1986).

Understanding the threat posed not only by the armed resistance but also by

unwanted federal intervention, President Washington dutifully followed the

federalism limitations imposed by the Constitution. During more than three years

of escalating violence, he urged Pennsylvania to lead the response while he

negotiated with state officials, according respect to their belief that federal

intervention was not needed. 4 Pennsylvania Archives 70, 123, 293–302 (John B.

Linn & William Henry Egle eds., 2d ser. 1896) [hereinafter Pa. Archives]. Tracking

21 25-6268 the requirements of the Domestic Violence Clause, an executive conference

recognized that if the President were to “draft[] the militia,” the “Governor w[ould]

be under the necessity of convening the Legislature.” Pa. Archives 70. Indeed, as

Governor Mifflin expressed to Secretary Randolph, “[h]ad the riot been unconnected

with the system of federal policy, the vindication of our laws would be left to the

ordinary course of justice; and only in the last resort, at the requisition, and as an

auxiliary of the civil authority, would the military force of the State be called forth.”

Id. at 88. President Washington also solicited an independent judicial review, which

certified that “the execution” of the laws of the United States was “obstructed by

combinations too powerful to be suppressed by the ordinary course of judicial

proceedings.” See id. at 70, 107, 123.

Acknowledging the stakes of using military force domestically over a state’s

objection, the President waited to deploy the Militia until he had Pennsylvania’s

approval. In Governor Mifflin’s final letter to President Washington before federal

troops were authorized, the Governor offered the President his “full and unequivocal

assurance that whatever requisition [he] may make” would be “promptly undertaken

and faithfully discharged,” leaving it “implicitly to [Washington’s] judgment” to

choose “the measures for discharging . . . the laws of [the] Union.” 4 Pa. Archives

93. Even after securing consent, President Washington asked to meet with state

officials to craft a joint plan, emphasizing “respectful attention” to the Governor and

22 25-6268 a “united and comprehensive view” for their “co-operation” during this “important

and delicate . . . conjuncture.” Id. at 96. The same day the President issued his

proclamation, Governor Mifflin issued his own, calling up the Pennsylvania Militia

and pledging full support for the federal military effort. Id. at 108–10.

b. The Trans-Oconee Republic (Washington) A domestic uprising in the fall of 1794 provides additional precedent

illustrating the limits of federal intervention when organized domestic unrest

obstructs federal law. In 1794, Elijah Clarke and Georgia frontiersmen declared a

separate “Trans-Oconee Republic” on Creek lands in direct defiance of President

Washington’s painstakingly negotiated 1790 Treaty of New York. See generally

Watson W. Jennison, The Trans-Oconee Republic, 1794 (2012); E. Merton Coulter,

Elijah Clarke’s Foreign Intrigues and the “Trans-Oconee Republic” (1921). An

armed group of hundreds of disaffected Revolutionary War veterans—supported by

thousands of others—maintained their illegal occupation for months despite

attempts by Georgia’s Governor Mathews to put it to an end. Jennison, The Trans-

Oconee Republic, at 109.

Secretary of State Edmund Randolph—who served on the Committee of

Detail—described this turmoil to President Washington as “domestic violence” and

identified the Domestic Violence Clause as the operative authority for calling forth

the Militia in response. 16 The Papers of George Washington 316–18 (David R.

23 25-6268 Hoth & Carol S. Ebel eds., 2011). Secretary Randolph reminded President

Washington that in such cases of domestic unrest, “unless the State chooses to resort

to the general government for aid in subduing it, the general government cannot of

its own accord interfere.” Id. The Constitution, Randolph emphasized, authorizes

interference only “on application of the legislature or of the executive (when the

legislature cannot be convened).” Id. (quoting U.S. Const. art. IV, § 4).

Underscoring the gravity of the threat, he suggested the President inform the

Governor that he would “give aid to the State, against those, who attempt a new

government, if applied for, according to the constitution or law.” Id. (emphasis

added).

The President adopted this position. The Secretary of War informed Governor

Mathews that “upon application of the Legislature, or of the Executive of a State,

when its Legislature cannot be convened,” the United States “are bound to protect it

against domestic violence.” 1 American State Papers: Indian Affairs 501–02

[hereinafter Am. State Papers]. Because the rebels were violating Georgia’s criminal

laws, the Secretary observed that the disturbance may have been “proper to leave”

to Georgia’s own management. Id. Yet the Secretary pointed out that the unrest also

violated a host of federal laws, including federal laws requiring the removal of

citizens from Indian lands, the Constitutional requirements for a new state, and the

Indian treaty. The President thus urged the Governor to “take the most energetic and

24 25-6268 decisive measures within [his] power for suppressing the said design,” including

using local militia. Id. President Washington added that he would “rely on

[Governor Mathews’] exertions to repel the mischief arising from this quarter.” Id.

After two months, Georgia’s efforts had yet to resolve the uprising and its

mounting threat to federal law. President Washington—this time through acting

Secretary of War Hamilton—again expressed to Governor Mathews the urgency of

bringing a swift end to the uprising, reminding the Governor that “upon [his]

application,” militias from neighboring states could help suppress the rebellion. Am.

State Papers at 502–03. In doing so, the President invoked and upheld his

constitutionally rooted promise to withhold federal troops until the State requested

them. Shortly thereafter, Georgia managed to suppress the uprising without federal

aid. Coulter, Elijah Clarke’s Foreign Intrigues, at 18.

This episode further indicates that the Domestic Violence Clause governs use

of the Militia when both federal and state interests are at stake. It suggests that the

President may not unilaterally deploy the Militia to a state absent that state’s

consent—even where unrest obstructs federal statutes and policies. Such cases are

instead governed by the Constitution’s promise to make federal intervention

contingent “on application” of the state. President Washington, though eager to end

the disturbance, maintained that federal force could be deployed only upon a request

by Georgia’s legislature (or governor if the legislature could not meet).

25 25-6268 c. Fries’s Rebellion (Adams) The episode known as Fries’s Rebellion confirms the primacy of state

response and federal-state cooperation. As in the Whiskey Rebellion, Pennsylvania

farmers organized in opposition to a federal property tax. Following the example of

President Washington before him, President Adams did not march in troops over the

objections of state officials. Instead, the President avoided intervening until the state

agreed to help quell the rebels. After determining that troops were necessary,

President Adams “directed James Henry, Secretary of War to request Pennsylvania’s

governor, Thomas Mifflin, to dispatch militia.” Jane Shaffer Elsmere, The Trials of

John Fries 435 (1979) (emphasis added). Secretary Henry then wrote to the

Governor that “the President thought it best to employ a military force.” W.W.H.

Davis, The Fries Rebellion 75 (1899). Governor Mifflin agreed with Secretary

Henry that military force was necessary “in suppressing the insurrection now

existing” and ordered the Brigadier-General to comply with the federal

government’s request. Id. at 76. In short, although the United States ultimately

intervened in Fries’s Rebellion, the decision to do so was not made unilaterally by

the President. Rather, it was the result of careful coordination between the federal

and state governments.

26 25-6268 d. Baltimore Riots of 1812 (Madison) President Madison, the original drafter of the Domestic Violence Clause,

followed this pattern when America’s declaration of war against Great Britain in

June 1812 ignited a summer of partisan violence in Baltimore. In “probably the most

terrifying and brutal riot in the young nation’s history up to that time,” mobs of

several hundred heavily armed men filled the streets. Frank A. Cassell, The Great

Baltimore Riot of 1812, 70 Md. Hist. Mag. 241, 241 (1975). Despite the

uncontrollable violence, “city officials . . . were reluctant to intervene,” and the

Mayor was “reluctant to call out the Militia.” Id. at 258.

The mob violence came to a flashpoint on August 3 when a Federalist

newspaper owner planned to distribute an incendiary anti-war newspaper at the

federal post office. A mob gathered and “threatened to pull the building down.”

Donald R. Hickey, The War of 1812: A Forgotten Conflict 61 (2012). Secretary of

State James Monroe wrote to President Madison the next day to stress the urgency

of the situation, warning that “[m]obs must be prevented” and unless “some

distinguished effort is . . . made,” there “is danger of a civil war.” Letter from James

Monroe to James Madison (Aug. 4, 1812). But a few days later, Attorney General

William Pinkney, reporting to the President from Baltimore, concluded: “I do not

perceive that the General Government could well interfere . . . even if it were

desirable that it should” because order can be maintained by the local “Majistracy .

27 25-6268 . . aided by . . . the Militia.” Letter from William Pinkney to James Madison (Aug.

7, 1812) (emphasis added).

Despite the threat to federal property and lackadaisical response by local

authorities, President Madison refused to deploy federal force even after mob

violence took place at a federal building, taking the view that the response properly

belonged to local authorities. While President Madison expressed dismay at the

situation and acknowledged that the post office was “under the sanction of the U.S.,”

he stated that he “was not aware, that any defensive measures were within the

Executive sphere.” Letter from James Madison to John Montgomery (Aug. 13,

1812). And ultimately, it was the local forces that quelled the disorder: A local

commander called out the city brigade to scatter the rioters and protect the post

office. Cassell, The Great Baltimore Riot, at 258.

***

Taken together, the Whiskey Rebellion, the Trans-Oconee Republic, Fries’s

Rebellion, and the 1812 Baltimore riots underscore that federal military intervention

must be informed by the Constitution’s federalism limitations, which expressly

require a state request in cases of domestic violence to place the Militia under shared

federal-state control. In the Whiskey Rebellion of 1791, President Washington spent

years engaging with and deferring to Governor Mifflin before sending in troops to

Pennsylvania—and he did so only after the Governor gave his consent. In 1794, he

28 25-6268 held back on deploying troops in response to the Trans-Oconee Republic on the

precise basis of the Domestic Violence Clause, while also reminding Governor

Mathews that the state could request federal assistance if necessary. During Fries’s

Rebellion of 1799, President Adams likewise awaited Governor Mifflin’s approval

before deploying troops into Pennsylvania to suppress the insurrection. And in the

Baltimore riots of 1812, President Madison made clear that even when federal

property was threatened, he had to wait for a request from the state. In these

instances, all which took place within the first few decades of the Constitution’s

ratification, Presidents Washington, Adams, and Madison understood that their

power to deploy troops to handle domestic disturbances was constrained by the

consent of the states.

2. The Early Republic to the Civil War, 1813–1865

The presidents who followed Presidents Washington, Adams, and Madison

honored the practice of withholding federal troops until the state—through the

legislature or the governor—requested federal intervention. In doing so, they

regularly cited the Domestic Violence Clause as the basis for their restraint.

a. Williamsport Canal Riots (Jackson)

In January 1834, violent labor disputes threatened the Chesapeake and Ohio

Canal, a major Jacksonian-era domestic infrastructure project jointly sponsored by

the federal and state governments. Coakley, The Role of Federal Military, 1789–

29 25-6268 1878, at 103. On January 16, 1834, deadly clashes between rival labor factions

halted construction and overwhelmed local authorities. Id. On January 28, 1834,

after almost two weeks during which state and local authorities failed to restore

order, the Maryland General Assembly formally resolved that the “civil authority is

incompetent to quell” such “riotous assemblages” and requested “the President of

the United States . . . order on to Williamsport such portion of the military of the

general government as in his opinion may be necessary to protect our citizens, and

prevent any injury to the public works.” Maryland H.D., J. Proc., Dec. Sess., at 166

(Jan. 28, 1834). Consistent with the Domestic Violence Clause, only after the state’s

formal request and finding that the civil authority had been exhausted did President

Jackson direct the Secretary of War to “order such military as will be able to aid the

civil authority of Maryland to put down the riotous assembly.” Robert B. Morris,

Andrew Jackson, Strikebreaker, 55 Am. Hist. Rev. 54, 61 (1949). Federal troops

managed to quell the uprising, allowing construction to resume.

b. The Dorr Rebellion (Tyler)

The Dorr Rebellion of 1841–1842 provides another example of a president

refusing to interfere in the domestic concerns of a state without a request. During

that incident, residents of Rhode Island held an unauthorized convention to frame a

state constitution, declared it the paramount law of Rhode Island, and ordered

popular elections to organize a new state government. Luther v. Borden, 48 U.S. (7

30 25-6268 How.) 1, 35–37 (1849). The movement elected Thomas Wilson Dorr to be the new

governor of Rhode Island, but Samuel Ward King, the governor under Rhode

Island’s existing charter government, denied the validity of the proceedings. Id.

After Dorr’s followers took up arms against the charter government, Governor King

declared martial law and called out the Rhode Island Militia. Id.

Governor King also wrote a letter to President John Tyler informing him that

500 to 1,000 armed insurgents had gathered and requesting that the federal

government send military aid. U.S. House of Representatives Select Committee on

Rhode Island, Interference of the Executive in the Affairs of June 7, 1844 at 688–90.

President Tyler refused, expressly referencing the Domestic Violence Clause and

responding that “the United States [has] no power to summon to the aid of the State

the military force of the United States, unless an application shall be made by the

legislature” because “the State executive cannot make such” a request “except when

the legislature cannot be convened.” Id. The President did not call out the Militia;

instead, he issued a declaration “recogniz[ing] [King] as the executive power of the

State, and took measures to call out the militia to support his authority if it should

be found necessary for the general government to interfere.” Luther, 48 U.S. at 44.

No such federal intervention turned out to be necessary because the armed

opposition surrendered shortly after President Tyler’s declaration. Id.

31 25-6268 The incident resulted in the Supreme Court deciding Luther v. Borden, in

which the Court shed some light on the limits of federal intervention. In that case,

plaintiff Martin Luther, one of Dorr’s supporters, brought a trespass action to recover

damages caused when officers of the Rhode Island Militia broke into his house on

Governor King’s orders. Id. at 34. Luther argued that because Dorr’s new

government had “displaced and annulled” the old one, the officers’ trespass

constituted unlawful military action against the official government. Id. at 34–35.

The Supreme Court concluded that the issue was non-justiciable because the

political branches possess exclusive authority “to decide what government is the

established one in a State,” and “certainly no court of the United States . . . would

have been justified in recognizing the opposing party as the lawful government.”5

Id. at 44. In so holding, the Court also acknowledged the constraints of the Domestic

Violence Clause, distinguishing between the ability of the President to call out the

Militia to repel invasions and to suppress insurrections against a state government:

5 The Supreme Court has characterized Luther’s holding as being limited to this Republican Guarantee context and the question of which of two competing governments should be recognized by the United States. E.g., Baker v. Carr, 369 U.S. 186, 223 (1962) (“[T]he only significance that Luther could have for our immediate purposes is in its holding that the Guaranty Clause is not a repository of judicially manageable standards which a court could utilize independently in order to identify a State’s lawful government.”); see also Hamdi v. Rumsfeld, 542 U.S. 507, 590 (2004) (Thomas, J., dissenting) (characterizing Luther as holding “that courts could not review the President’s decision to recognize one of the competing legislatures or executives”).

32 25-6268 “The power given to the President in each case is the same,—with this difference

only, that it cannot be exercised by him in the latter case, except upon the application

of the legislature or executive of the State.” Id. at 44–45 (emphasis added).

c. Guerilla Warfare in Missouri (Lincoln)

Even during the Civil War, President Abraham Lincoln adhered to the

Domestic Violence Clause’s limits on federal intervention. In October 1863,

Missouri, under a provisional Unionist government, was riven by guerrilla warfare

and infighting among Union loyalists. Amid this factional unrest, Missouri

Governor Hamilton Gamble requested federal aid. President Lincoln declined,

explaining that “it did not appear to me that the domestic violence you apprehend,

was very imminent” and that “[i]n the absence of such violence, or imminent danger

thereof, it is not proper for the national executive to interfere.” Letter from Abraham

Lincoln to Hamilton R. Gamble (Oct. 19, 1863). President Lincoln noted that he

would leave suppression of the disturbances to Missouri officials, while

underscoring that “on a proper case made,” he would “give the State the

constitutional protection against invasion and domestic violence.” Id.

3. The Post-Civil War Period, 1866–Present

In the period following the Civil War, the constitutional constraints of the

Militia and Domestic Violence Clauses governed in the same way they did

previously, except when the state itself was violating federal law—a new and notable

33 25-6268 exception tied to the Fourteenth Amendment (discussed in Part II.C.4, infra). With

the exception of one president noted below, presidents have consistently respected

these constitutional restraints, following the examples of Presidents Washington,

Adams, and Madison in the earliest years of the republic.

a. The Brooks-Baxter Dispute (Grant) In 1874, following a month-long armed conflict in Arkansas driven by

supporters of Joseph Brooks, who had lost the gubernatorial race but refused to

concede, President Ulysses S. Grant called out federal aid and directed all Arkansas

troops to recognize Elisha Baxter as the rightful governor. In doing so, President

Grant noted that “under section 4 of Article IV of the Constitution,” the Governor

“has heretofore made application to me to protect said State and the citizens thereof

against domestic violence,” and “both houses [of the State’s legislature] have passed

a joint resolution also applying to me to protect the State against domestic violence.”

Wilson, Federal Aid, at 151; Proclamation No. 218 (May 15, 1874).

b. The Great Railroad Strike of 1877 (Hayes)

During the Great Railroad Strike of 1877, President Rutherford B. Hayes

prepared to render federal military aid prior to a state’s request but still waited for a

formal request do so. Even though the strike had caused widespread violence in

West Virginia and paralyzed commerce in several states, President Hayes ordered a

federal response only after West Virginia Governor Henry Mathews reported that

34 25-6268 “domestic violence exist[ed]” that “his State [was] unable to suppress.”

Proclamation No. 236 (July 18, 1877). Referencing the Domestic Violence Clause,

President Hayes observed that the governor “made due application” “under section

4 of Article IV of the Constitution” and “the legislature of said State . . . c[ould] not

be convened in time to meet the present emergency.” Id. When the strikes spilled

over to Maryland, Governor John Carroll likewise requested federal aid, writing that

“it [was] impossible with the force at [his] command to disperse the rioters” and

“called upon” the President “to furnish the force necessary to protect the State

against domestic violence,” again noting that the “legislature can not be convened

in time to meet the emergency.” Wilson, Federal Aid, at 165.

After the epicenter of the violence shifted to Pennsylvania, Philadelphia’s

mayor requested federal troops, and President Hayes, recognizing that the

Constitution required a request from the state legislature or governor, first made

“every effort . . . to reach Governor Hartranft.” Id. at 167. After unsuccessful

attempts to reach the governor, who was on the Pacific coast, the Adjutant General

informed the traveling troops that although “[t]he governor of Pennsylvania has not

yet made a formal call for troops, . . . the President wishes to prepare in season for

emergencies.” Id. at 274. Shortly after midnight the next day, Governor Hartranft

officially requested the President’s “assist[ance] in quelling mobs within the borders

of the State of Pennsylvania.” Id. at 167. Upon receiving the request, President

35 25-6268 Hayes issued a proclamation, again invoking the Domestic Violence Clause and

noting that “the governor . . . has represented that domestic violence exists in

[Pennsylvania] which the authorities of said State are unable to suppress.” Id. at

168.

As the strike spread westward, the federal troops were directed to stand ready

but hold off unless and until a state made a formal request. The governors of Illinois

and Indiana each formally requested aid, expressly referring to “domestic violence.”

Id. at 171–72. In Ohio, even though local authorities in Toledo “implored” the

federal commander to “render assistance,” he refused, concluding that “he should

take no part in suppressing the rioters, inasmuch as the governor had not called for

assistance.” Id. at 170; see also id. at 173–74 (similar response to the riots in St.

Louis, Missouri).

c. The Pullman Strike (Cleveland) In dealing with the Pullman Strike of 1894, President Grover Cleveland

aberrated significantly from the precedent set by prior Presidents. President

Cleveland sent federal troops into Chicago to enforce an injunction issued by a

federal court barring railroad strikers from “interfering with, hindering, obstructing,

or stopping any mail trains, express trains, or other trains, whether freight or

passenger, engaged in interstate commerce.” In re Debs, 158 U.S. 564, 568 (1895),

disapproved of by Bloom v. Illinois, 391 U.S. 194 (1968). In his proclamation, the

36 25-6268 President characterized the strikers as a “riotous mob” and stated that “by reason of

unlawful obstructions, combinations, and assemblages of persons,” it had become

“impracticable” to “enforce by the ordinary course of judicial proceedings the laws

of the United States.” Proclamation No. 366 (July 8, 1894).

The President’s deployment of federal troops prompted a strenuous response

from Illinois Governor John Altgeld, who informed President Cleveland that Illinois

was “able to take care of itself.” Letter from John Altgeld to Grover Cleveland (July

5, 1894). Governor Altgeld further implied that the administration was relying on

pretextual justifications, noting that “very little actual violence has been committed”

and “[t]here have been a few local disturbances, but nothing that seriously interfered

with the administration of justice, or that could not be easily controlled by the local

or State authorities.” Id.

Invoking principles of federalism, Governor Altgeld stressed that “federal

supremacy and local self-government must go hand in hand, and to ignore the latter

is to do violence to the Constitution.” Id. As such, the governor argued, “the statute

authorizing the President to send troops into States must be construed” in line with

the “fundamental principle” that “[e]ach community shall govern itself so long as it

can and is ready and able to enforce the law.” Id. “Especially,” he emphasized, “in

matters relating to the exercise of the police power and the preservation of law and

order.” Id.

37 25-6268 President Cleveland’s short reply engaged little with Governor Altgeld’s

concerns, averring only that “there has been no intention of thereby interfering with

the plain duty of the local authorities to preserve the peace of the city.” Id. His

decision to send in federal troops and ignore the state’s objections is a marked

departure from the approach taken by virtually every president who deployed troops

domestically, except when states stood in opposition to federal law.6

d. The Mining Strikes (T. Roosevelt, Wilson, and Harding) In 1902, faced with a coal strike that threatened widespread hardship for

Eastern and Midwestern states, various officials urged President Theodore Roosevelt

to invoke the precedent of the Pullman strike and intervene with federal troops.

President Roosevelt declined until the Pennsylvania Governor made a formal

request. Laurie & Cole, The Role of the Federal Military, 1877–1945, at 184–85.

The strike ultimately settled without the need for federal military intervention.

Similarly, after the Nevada Governor requested federal assistance in response to

6 There is language in the Supreme Court’s decision in In re Debs that appears at first blush to support President Cleveland’s decision to send in the Militia. In broad dicta, the Court stated that “[t]he strong arm of the national government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails. If the emergency arises, the army of the nation, and all its militia, are at the service of the nation, to compel obedience to its laws.” In re Debs, 158 U.S. at 582. The Debs Court, however, never held that President Cleveland had the authority to send in the National Guard. The only issue before the Court was whether to grant habeas relief to a defendant jailed for violating the injunction against the strikers.

38 25-6268 strikes that erupted in Goldfield, Nevada, President Roosevelt directed the California

National Guard to Nevada but instructed them “not [to] act” until he received

confirmation from the state’s legislature in accordance with the Domestic Violence

Clause. Wilson, Federal Aid, at 310–11. The legislature was quickly convened and

issued a formal resolution requesting federal military aid. Id. at 31.

President Woodrow Wilson’s response to striking coal miners in 1913–1914

is largely in line with the traditional practice of respecting state sovereignty. Even

when the strikers mounted an armed resistance to Colorado’s state-controlled

National Guard, President Wilson expressly withheld intervention under the

constraints of the Domestic Violence Clause and responded only after the Colorado

Governor sought federal assistance. Proclamation No. 1265 (Apr. 28, 1914). In July

1914, however, President Wilson sent federal troops into Arkansas to protect federal

property from violent labor riots at coal companies under a federal receivership.

Wilson, Federal Aid, at 321; Laurie & Cole, The Role of the Federal Military, 1877–

1945, at 219–21. President Wilson did so without awaiting a request from the state,

but state officials expressed their acquiescence to the federal intervention. Id.

Finally, in 1921, after a similar conflict involving armed, striking coal miners

arose in West Virginia, the state sought assistance from President Warren G. Harding.

President Harding’s proclamation calling forth the Militia likewise quoted the

39 25-6268 Domestic Violence Clause and noted the Governor’s request for intervention.

Proclamation No. 1606 (Aug. 30, 1921).

e. The Detroit Riots (F. Roosevelt and L. Johnson) Presidents continued to await the States’ requests throughout the rest of the

twentieth century. In responding to riots in Detroit in 1943, President Franklin D.

Roosevelt called forth the Militia because “the Governor of the State of Michigan

ha[d] represented that domestic violence exist[ed] in said State which the authorities

of said State [were] unable to suppress” and because, “it is provided in the

Constitution of the United States that the United States shall protect each State in

this Union, on application of the Legislature, or of the Executive, when the

Legislature cannot be convened, against domestic violence.” Proclamation No. 2588

(June 21, 1943). During the 1967 riots in Detroit and the 1968 unrest following Dr.

Martin Luther King Jr.’s assassination, President Lyndon B. Johnson similarly

deployed the National Guard in response to requests by Michigan Governor

Romney, Illinois Governor Shapiro, and Maryland Governor Agnew. Telegram

from Lyndon B. Johnson to George W. Romney (July 24, 1967); Proclamation No.

3841, 33 F.R. 5497 (April 9, 1968); Proclamation No. 3842, 33 F.R. 5499 (Apr. 9,

1968).

40 25-6268 f. The Postal Strike (Nixon) We have at least one additional instance in which federal troops were called

to enforce federal law without seeking state consent, but the case is unusual because

the problem was not related to domestic violence. In response to the 1970 postal

worker strike, President Nixon sent thousands of National Guard members to New

York City—not to quell any domestic unrest, but to deliver the mail. James B.

Jacobs, The Role of Military Forces in Public Sector Labor Relations, 35 Indus. &

Lab. Rels. Rev. 163, 167 (1982). I have noted the case here out of completeness, but

it is not even clear that the Domestic Violence Clause had any applicability.

During the strike, the Department of Justice’s Office of Legal Counsel (OLC)

issued a memorandum supporting President Nixon’s use of the troops. See

Memorandum from Off. of Legal Couns. to Gen. Couns., Dep’t of the Army, Re:

Authority to Use Troops to Execute the Laws of the United States (Mar. 27, 1970).

In it, the OLC broadly stated that the president has “inherent authority” to use troops

to “take care that the laws be faithfully executed.” Id. (citing U.S. Const. art. II,

§ 3).7 While noting that the authority had historically “been utilized in the context

7 Although other OLC memos have touched on the President’s authority to use troops to protect federal property and functions, most of these memos relate to activity in Washington D.C., which is a federal enclave. See, e.g., William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Statutory Authority to Use Federal Troops to Assist in the Protection of the President (Nov. 12, 1969) (discussing the stationing of troops in the vicinity of the White House); William H. Rehnquist, Re: Authority to Use Troops to Prevent Interference With Federal

41 25-6268 of enforcing laws against violent obstruction,” the OLC found that it was not

“limited to enforcement but encompasses the ‘execution,’ i.e., the completion,

effectuation, performance, of the laws.” Id. Perhaps not surprisingly, OLC did not

refer to either the Militia or Domestic Violence Clauses.

g. The Rodney King Riots (G.H.W. Bush) During the 1992 Los Angeles riots following the beating of Rodney King,

President George H.W. Bush deployed National Guardsman “at the request of the

Governor” of California, Pete Wilson. President Bush, Address to the Nation on the

Civil Disturbances in Los Angeles, California (May 1, 1992). Like Presidents

Washington, Adams, Madison, Jackson, Tyler, Lincoln, Grant, Hayes, T. Roosevelt,

Wilson, Harding, F. Roosevelt and L. Johnson, President Bush respected the

sovereignty of the states in deciding whether to deploy the Militia—complying with

the constraints imposed by the Domestic Violence Clause.

4. The Domestic Violence Clause and the Fourteenth Amendment

The Fourteenth Amendment introduced a new dimension to the constitutional

dialogue between the Militia and Domestic Violence Clauses by establishing a

Employees by Mayday Demonstrations and Consequent Impairment of Government Functions (Apr. 29, 1971) (discussing “Mayday Movement” protests in D.C.); William H. Rehnquist, Re: Authority to Use Troops to Protect Federal Functions, Including the Safeguarding of Foreign Embassies in the United States (May 11, 1970) (discussing the protection of foreign embassies “through the use of federal, rather than D.C. police officers”).

42 25-6268 limited set of circumstances where the federal government may deploy troops over

a state’s objections. See Ilan Wurman, The Second Founding: An Introduction to the

Fourteenth Amendment 102–03 (2020). Section 5 of the Fourteenth Amendment

granted Congress “the power to enforce, by appropriate legislation” the protections

of the Amendment’s other sections, including the Privileges or Immunities, Due

Process, and Equal Protection Clauses in Section 1. Section 5 was Congress’s

response to the southern states’ continued resistance after the Civil War to granting

full freedoms to formerly enslaved people—a resistance notably embodied in the so-

called Black Codes. It permitted Congress to address a circumstance not anticipated

in the founding debates: state violations of the Constitution and federal statutes. 8

In 1871, three years after the Fourteenth Amendment’s ratification, Congress

adopted the so-called Ku Klux Klan Act, entitled “An Act to enforce the Provisions

of the Fourteenth Amendment to the Constitution of the United States, and for other

Purposes.” Ch. 22, 17 Stat. 13 (codified as amended at 42 U.S.C. §§ 1983, 1985–

1986). In this Act, Congress authorized the President to employ the Militia in “all

cases where insurrection, domestic violence, unlawful combinations, or conspiracies

in any State shall so obstruct or hinder the execution of the laws thereof . . . as to

deprive . . . the people of such States any of the rights, privileges, or protection

8 The Domestic Violence Clause figured prominently in the civil rights enforcement debates during Reconstruction. See Bybee, Insuring Domestic Tranquility, 66 Geo. Wash. L. Rev. at 67–71. Those debates are not relevant for my present purposes.

43 25-6268 named in the constitution and secured by this act.” Id.; see also 10 U.S.C. § 253.

The Supreme Court held that the Act was unconstitutional insofar as it applied to

private actors. United States v. Harris, 106 U.S. 629, 639 (1883). But the Court also

recognized that the Act was constitutional insofar as it “protect[ed] against the acts

of the state government itself.” Id. at 608 (quoting United States v. Cruikshank, 25

F. Cas. 707, 710 (C.C.D. La. 1874), aff’d, 92 U.S. 542 (1875)) (emphasis added).

During Reconstruction, and again during the Civil Rights Era in the mid-

twentieth century, presidents have exercised Congress’s delegation of its Fourteenth

Amendment enforcement power when states have refused to protect the rights

conferred by Section 1.

b. The Ku Klux Klan (A. Johnson and Grant) In 1868, state officials asked President Andrew Johnson for federal assistance

in enforcing their laws against the Ku Klux Klan. President Johnson deployed

federal troops once the Tennessee General Assembly made a formal request.

Coakley, The Role of Federal Military, 1789–1878, at 301–02. In 1872, President

Grant employed troops against the Ku Klux Klan in South Carolina. The record is

not clear whether the state either formally requested federal assistance or objected

to the federal presence, but it is likely that the governor either requested assistance

or willingly accepted it because the governor was actively arming Black militia to

combat the Ku Klux Klan. See id. at 310–13. But President Grant understood that

44 25-6268 he could not intervene without state consent when states were not participating in or

acquiescing to infringements on individual rights. In 1875, President Grant

deployed the Militia to Louisiana to deal with “the White Leagues, armed and ready

for conflict.” Letter from Ulysses S. Grant to the Senate of the United States (Jan.

13, 1875). He emphasized that the governor had “made a formal requisition” before

sending in troops, in compliance with “section 4, Article IV, of the Constitution.” Id.

c. The Desegregation Cases (Eisenhower, Kennedy, and L. Johnson) The civil rights enforcement acts came to the fore in the desegregation cases.

In 1957, Arkansas Governor Orval Faubus and other state officials engaged in a

multi-pronged campaign to prevent a court-ordered desegregation plan. See Cooper

v. Aaron, 358 U.S 1, 8–10 (1958). Acting under the Governor’s orders, the Arkansas

National Guard “stood shoulder to shoulder” and “forcibly prevented” Black

students from entering a school. Aaron v. Cooper, 156 F. Supp. 220, 225–26 (E.D.

Ark. 1957). To protect the students, President Eisenhower deployed regular army

troops and federalized the Arkansas National Guard.

In defending the deployment, the Attorney General stressed that the Governor

had made “no effort whatever” to “uphold the jurisdiction of the Federal court” and

instead “clearly directed” his powers to “nullif[y] . . . the court’s mandate.” Id. Even

so, the Attorney General emphasized that states still bear the “primary and

mandatory duty” to suppress “domestic violence” even where “the domestic

45 25-6268 violence is interposed in opposition to the enforcement of Federal law rather than to

the local law of the State.” Id. at 321–23 (emphasis added). Only when a state shirks

that duty by itself subverting federal law may the federal government federalize the

Militia to ensure enforcement. Id. at 324; see also Cooper, 358 U.S. at 15, 18–19

(1958) (finding that the turmoil in Arkansas was “directly traceable to the actions of

legislators and executive officials of the State of Arkansas, taken in their official

capacities”).

Between 1962 and 1963, President John F. Kennedy similarly federalized and

deployed the National Guard three times to overcome “open and active resistance”

by state officials to federal court desegregation orders at public schools. In

September 1962, the Governor of Mississippi, in defiance of federal court orders,

incited a mob of white students to block the enrollment of the first African American

student admitted to the University of Mississippi. President Kennedy first sought

state compliance but federalized the National Guard when the state refused,

declaring that the Mississippi Governor and other state officials were “willfully

opposing and obstructing the enforcement of [federal court] orders.” Proclamation

No. 3497 (Sept. 30, 1962). Then, in June 1963, President Kennedy federalized the

Alabama National Guard to protect two African American students after Governor

Wallace, with an escort of state police, physically “stood in the schoolhouse door”

to block their enrollment at the University of Alabama. See Proclamation No. 3542

46 25-6268 (June 11, 1963). Later that same year, after Alabama’s governor used the National

Guard to block African American students from attending desegregated public

schools in defiance of federal court orders, President Kennedy again federalized the

Guard to enforce those orders. See Proclamation No. 3554 (Sept. 10, 1963).

All three episodes featured state officials’ “direct and active resistance” to

federal law in defying federal desegregation orders at public schools. Notably,

despite President Kennedy’s efforts in each case to first secure the cooperation of the

state, the governors refused to provide assurances that they would respect the

supremacy of federal law.

In a similar episode in 1965, President Lyndon B. Johnson federalized the

Alabama National Guard, directing it to protect the civil rights marchers from Selma

to Montgomery after Governor Wallace actively subverted federal law by defying a

federal injunction barring state officials from interfering with the march. See

Williams v. Wallace, 240 F. Supp. 100 (M.D. Ala. 1965). In his proclamation,

President Johnson found that the Governor’s express “refus[al] to provide for the

safety and welfare” of the marchers was “obstructing the execution and enforcement

of the laws of the United States,” including the court’s order. Proclamation No. 3645

(March 20, 1965).

Because the desegregation cases involved state governors and officials who

openly subverted federal law, no state request was constitutionally required under

47 25-6268 the Domestic Violence Clause because the source of the domestic violence was the

state itself.

We can quibble around the edges of these examples, and it is possible that I

have missed other examples or even counterexamples, but the historical record—

from George Washington to George H.W. Bush—is, in the main, consistent: federal

use of the Militia is constrained by the Domestic Violence Clause. Nor is this

historical pattern confined to domestic unrest involving only state law or interests:

in most episodes, federal interests, laws, and policies were the primary target of the

unrest. From the earliest examples of presidential practice to modern day

deployments, presidents have understood that state governments must first request

assistance as a necessary condition for the federalized deployment of the Militia in

response to domestic disturbances.

An important exception to this rule comes out of the Fourteenth Amendment:

If states actively oppose or resist the enforcement of the laws in violation of the

Privileges or Immunities, Due Process, or Equal Protection Clauses, the federal

government may deploy troops to execute the laws of the United States. In such

cases, the Domestic Violence Clause provides no basis for objection when the states

themselves are the source of or have acquiesced in the unrest. But otherwise, the

President may not deploy the Militia without state consent.

48 25-6268 III. JUDICIAL REVIEW OF PRESIDENTIAL ACTIONS

In Newsom, we concluded that we had the power to review the President’s

decision to deploy troops to enforce federal law in Los Angeles. 141 F.4th at 1045–

47. What standard of review do we use? We concluded that courts must defer to the

President’s determination that a statutory precondition for federalizing the National

Guard has been met so long as that determination “reflects a colorable assessment

of the facts and law within a ‘range of honest judgment.’” Id. at 1051 (citing

Sterling, 287 U.S. at 399). Although we did not “further specify the precise standard

that governs our review,” id., we described the standard as one that is “especially

deferential,” id. at 1047.

I am concerned that such deference—sounding in horizontal separation of

powers concerns—cannot be reconciled with vertical separation of powers

principles found in the Domestic Violence Clause. And no matter the appropriate

standard of review, one thing is clear: It does not require courts to turn a blind eye

to pretext. Courts are “not at liberty to shut [their] eyes to an obvious mistake, when

the validity of the law depends upon the truth of what is declared.” Baker v. Carr,

369 U.S. 186, 214 (1962) (citation omitted); cf. Trump v. United States, 603 U.S.

593, 608 (2024) (“If the President claims authority to act but in fact exercises mere

‘individual will’ and ‘authority without law,’ the courts may say so.” (quoting

Youngstown, 343 U.S. at 655 (Jackson, J., concurring))). I discuss below why I do

49 25-6268 not think “special deference” is the appropriate standard of review.9 I then offer a

suggestion for a burden-shifting framework that affords deference to both the

President and the states. Finally, I address why, at a minimum, we should allow the

states the opportunity to demonstrate that the President’s stated reasons are

pretextual.

A. Special Deference Is Not the Proper Standard of Review

Determining how to account for the Domestic Violence Clause in our review

of the President’s actions does not admit of easy or traditional principles. We surely

owe deference to the President’s determination of how force should be employed in

defense of the enforcement of federal law. See 10 U.S.C. § 12406 (“[T]he 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.” (emphasis

added)). We also surely owe some deference to presidential determinations of the

need for such actions. But the contexts for those determinations are not the same.

The question in this case is not how the President directs the National Guard, but

whether the National Guard may be deployed to Oregon against the wishes of the

state in the first place. The President has made certain statements in support of his

9 In her dissent from the denial of rehearing en banc in Newsom, Judge Berzon provided a thoughtful analysis explaining why exceptional deference to the President’s determinations is not appropriate in this context. See Newsom v. Trump, --- F.4th ----, 2025 WL 2977104, at *3–10 (9th Cir. Oct. 22, 2025) (Berzon, J., dissenting from the denial of rehearing en banc).

50 25-6268 proposed course of action. The issue for us is how much deference do we owe to

those justifications?

There are, of course, circumstances where the judiciary, as a coordinate branch

of government, must accord great respect to Presidential determinations of fact. But

the cases in which we have been “especially deferential” are largely limited to

national security and foreign affairs. Neither context is implicated here.

For example, we have long recognized that “the Executive’s evaluation of the

underlying facts is entitled to” additional deference “in the context of litigation

involving ‘sensitive and weighty interests of national security and foreign affairs.’”

Trump v. Hawaii, 585 U.S. 667, 708 (2018) (quoting Holder v. Humanitarian L.

Project, 561 U.S. 1, 33–34 (2010)). This deference is due in part because we assume

that the President has superior access to information, including information for

which we have few tools for assessing. See United States v. Curtiss-Wright Exp.

Corp., 299 U.S. 304, 320 (1936). Thus, “when it comes to collecting evidence and

drawing factual inferences in this area, ‘the lack of competence on the part of the

courts is marked,’ and respect for the Government’s conclusions is appropriate.”

Holder, 561 U.S. at 34 (citation omitted). As a result, if the Executive is “seeking

to prevent imminent harms in the context of international affairs and national

security,” the Executive “is not required to conclusively link all the pieces in the

puzzle before we grant weight to its empirical conclusions.” Id. at 35.

51 25-6268 If this case involved a foreign police action, an action to repel foreign

invasion, or a declared war, we would have little basis for second-guessing the

President’s determination that an exigency exists. But that is not this case. Those

are external actions for which we have recognized “a standard [of review] far more

general than that which has always been considered requisite with regard to domestic

affairs.” Curtiss-Wright, 299 U.S. at 324. With respect to the quelling of an internal

uprising or the purported need to execute laws domestically, the judiciary is fully

capable of making findings regarding the need for action.

The upshot of all this is that although there are certainly circumstances where

the President’s findings deserve substantial deference, in the context of the

interpretation and invocation of the constitutional terms at issue, the President’s

findings cannot be the last word. Absolute fealty is not required here. We have the

capacity both to define constitutional terms and to make findings as to whether the

President’s asserted basis for action comes within that definition. Just as we would

not entrust the President to judge for himself whether a tax was proportional, art. I,

§ 8, cl. 1, whether a regulation gave preference to one port over another, art. I, § 9,

cl. 6, or whether a rule was properly within the scope of the Commerce Clause, art.

I, § 8, cl. 3, there is no reason for the judiciary to accept at face value the President’s

determination that a condition of insurrection or rebellion exists within a state or that

he is unable to execute the law through ordinary means.

52 25-6268 It bears repeating that Oregon is not challenging in this suit how the President

is using the National Guard, but whether he may use the National Guard at all.

Whether the President can lawfully intervene in the first place to exercise an

enumerated power is not a question beyond the ken of the judiciary. See Newsom,

141 F.4th at 1046. Judicial review means determining “whether the Executive

branch has correctly applied [a] statute that establishes its authority,” Chadha v.

Immigr. & Naturalization Serv., 634 F.2d 408, 430 (9th Cir. 1980), aff’d, 462 U.S.

919 (1983), and “whether he has acted within the law,” Clinton v. Jones, 520 U.S.

681, 703 (1997). In doing so, “[j]udges have always been expected to apply their

‘judgment’ independent of the political branches when interpreting the laws those

branches enact.” Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412 (2024) (citing

The Federalist No. 78). Although the “views of the Executive Branch [may] inform

the judgment of the Judiciary,” they may “not supersede it.” Id. at 370.

B. A Proposal for a Burden-Shifting Standard

So how do we determine whether the federal government may call forth the

Militia in the first instance, and over the objections of a state? This is a challenging

question. With respect to the Tenth Amendment (and outside the context of the anti-

commandeering principle), the Court has said that such decisions should largely be

left to the political processes. See South Carolina v. Baker, 485 U.S. 505, 572

(1988); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 552 (1985). I do

53 25-6268 not believe that the same can be said for the states’ privilege and immunity embedded

in the Domestic Violence Clause. That Clause is a far more particular declaration of

states’ rights than the tautologous Tenth Amendment. The Domestic Violence

Clause is the rare provision in the Constitution that secures an “attribute[] of

sovereignty attaching to every state government which may not be impaired by

Congress, not because Congress may lack an affirmative grant of legislative

authority to reach the matter, but because the Constitution prohibits it from

exercising the authority in that manner.” Nat’l League of Cities v. Usery, 426 U.S.

833, 845 (1976), overruled on other grounds by, Garcia, 469 U.S. 528; see also New

York v. United States, 505 U.S. 144, 156–57 (1992).

Because the President’s exercise of authority under § 12406 is only as broad

as Congress’s authority under the Militia Clause, we may treat the Executive’s

justification for sending federal troops to enforce federal law as it were Congress’s

own set of findings. Cf. Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 131–32 (2015)

(Thomas, J., concurring) (“[T]he Constitution does not empower Congress to issue

a judicially binding interpretation of the Constitution or its laws. Lacking the power

itself, it cannot delegate that power to an agency.”). And the Court has never

obligated itself to accept whatever findings Congress makes. For example, although

Congress has broad authority under the Commerce Clause, the Court has said there

54 25-6268 are limits to that authority. With respect to Congress’s findings linking gun

possession in school zones with crime affecting the economy, the Court wrote:

[U]nder the Government’s . . . reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens . . . . Under the theories that the Government presents . . ., it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign.

United States v. Lopez, 514 U.S. 549, 558–59 (1995). And in Gonzales v. Carhart,

550 U.S. 124 (2007), although the Court ultimately upheld the Partial–Birth

Abortion Ban Act of 2003, it rejected the Attorney General’s argument “to uphold

the Act on the basis of the congressional findings alone.” Id. at 165. “Although we

review congressional factfinding under a deferential standard, we do not in the

circumstances here place dispositive weight on Congress’ findings. The Court

retains an independent constitutional duty to review factual findings where

constitutional rights are at stake.” Id.

Even in the context of military action, the Supreme Court has likewise held

that “[i]t does not follow from the fact that the executive has [a] range of discretion”

in responding to certain exigencies “that every sort of action the [Executive] may

take, no matter how unjustified by the exigency or subversive of private right and

the jurisdiction of the courts, otherwise available, is conclusively supported by mere

executive fiat.” Sterling, 287 U.S. at 400. “It is the emergency that gives the right,

55 25-6268 [but] the emergency must be shown to exist before the [action] can be justified.”

Mitchell v. Harmony, 54 U.S. 115, 134 (1851) (emphasis added).

So here, in an attempt to “further specify the precise standard that governs our

review” of a state’s challenge to the basis of the President’s decision to deploy the

Militia to the states, Newsom, 141 F.4th at 1051, I offer one possible solution: a

three-step burden-shifting scheme informed by the structure, history, and tradition

of the Constitution. 10 At the first step, we expect the President to state

which § 12406 precondition for the federalization and deployment of the National

Guard is being invoked—e.g., to combat an invasion, to suppress a rebellion, or to

execute specified federal laws—and the factual circumstances the President believes

satisfy that precondition. In so doing, the President must articulate a rational

connection between the factual finding and the need to invoke § 12406. Cf. Motor

Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,

42–43, (1983) (requiring a “reasoned analysis” of the facts). This is not a

particularly difficult burden, and following Newsom, so long as the President’s

10 The Supreme Court has adopted burden-shifting frameworks in a variety of contexts. See, e.g., Ohio v. Am. Express Co., 585 U.S. 529, 541–42 (2018) (applying a “three-step, burden-shifting framework” to the rule of reason in antitrust); Batson v. Kentucky, 476 U.S. 79, 96–98 (1986) (establishing a three-step burden-shifting analysis for peremptory strikes of jurors); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (establishing a three-part burden-shifting test for proving racial discrimination under Title VII).

56 25-6268 articulation “reflects a colorable assessment of the facts and law within a ‘range of

honest judgment,’” the President’s determination is due prima facie deference.

Newsom, 141 F.4th at 1051 (quoting Sterling, 287 U.S. at 399).

But when it comes to the findings of fact supporting the President’s

declaration, we need not accept the President’s telling of the story as the last word,

particularly in the face of contrary evidence. See Sterling, 287 U.S. at 401 (“What

are the allowable limits of military discretion, and whether or not they have been

overstepped in a particular case, are judicial questions.” (emphasis added)); cf.

Crowell v. Benson, 285 U.S. 22, 60 (1932) (“In cases brought to enforce

constitutional rights, the judicial power of the United States necessarily extends to

the independent determination of all questions, both of fact and law, necessary to

the performance of that supreme function.” (emphasis added)). In Martin v. Mott,

the Court noted that a “public officer is presumed to act in obedience to his duty”

only “until the contrary is shown.”11 25 U.S. (12 Wheat.) 19, 33 (1827) (emphasis

11 Although Martin v. Mott contained dicta ostensibly pertaining to presidential deference, Justice Story was addressing only the deference militiamen within the President’s chain of command owe to the President’s determinations. See 25 U.S. at 29–30 (“Is the President the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question, upon which every officer to whom the orders of the President are addressed, may decide for himself, and equally open to be contested by every militia-man who shall refuse to obey the orders of the President?”). That case was not about—and did not establish a rule regarding—the courts’ ability to review presidential determinations. Moreover, Martin occurred in the context of invasion during the War of 1812, not domestic violence. Although it may contain language that could be construed overly broadly if taken out of context,

57 25-6268 added). As such, something akin to a burden-shifting framework is more appropriate

to evaluate the President’s factual findings.

To raise a challenge to a Presidential determination “conceived in good faith,

in the face of the emergency, and directly related to the quelling of the disorder or

the prevention of its continuance,” a state must be permitted to show, by the

preponderance of the evidence, that the invoked statutory factual precondition is not

met. See Sterling, 287 U.S. at 399–400. In the case of § 12406(3), a state can meet

its burden by showing that ordinary civil processes were sufficient to enforce federal

law. At this stage, history implores consideration of factors such as whether state

officials were willing to cooperate and assist or if state officials actively obstructed

federal enforcement; whether federal civilian tools remained available; and whether

the deployment infringes on countervailing state interests, including by intruding in

matters traditionally left to states, such as crime or riot. By placing the burden on

the state to demonstrate that the President’s articulation of the facts is incorrect, we

have given the President his due deference.

Only if the state successfully makes such a showing does the burden then shift

back to the President to provide evidence supporting his initial articulation. He may

do so by producing facts demonstrating that the deployment was within the

“general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used.” Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821).

58 25-6268 permissible bounds of the President’s statutory and constitutional power to call forth

the Militia to execute federal laws. The court can consider the geographic and

temporal proximity of the evidence; whether state officials openly refused or

obstructed federal officials or a federal court order; and whether Fourteenth

Amendment individual rights were implicated.

If the President is able to do so, then the state must be afforded a final

opportunity to demonstrate that the President’s proposed justification was a pretext

for an unlawful purpose. It might do so by showing reliance on post hoc rationales,

departures from established criteria or procedures, or a mismatch between stated

justifications and impermissible objectives. Throughout, the ultimate burden of

persuasion rests with the state; courts should accord respectful deference to

executive judgments of exigency and refrain from second-guessing military tactics

or strategies, but they should also require a rationale grounded in evidence rather

than ipse dixit.

C. Consideration of Presidential Pretext

Whether or not the court accepts my prior suggestion, we should, at a

minimum, give the state the opportunity to prove whether the political branches are

abusing “constitutional powers” by assuming authorization “as the pretext for the

usurpation of powers not belonging” to them. M’Culloch v. Maryland, 17 U.S. 316,

359 (1819); see also Youngstown, 343 U.S. at 650 (Jackson, J., concurring) (noting

59 25-6268 the risk that a president may use apparently authorizing language as “a ready pretext

for usurpation” of power).

Recently, in Department of Commerce v. New York, 588 U.S. 752 (2019), the

Court addressed an instance that called for the judicial accounting of executive

pretext. In that high-profile case, Secretary of Commerce Wilbur Ross had sought

to reinstate a question about citizenship on the 2020 census questionnaire. The

Supreme Court affirmed the district court’s “determination that the Secretary’s

decision must be set aside because it rested on a pretextual basis.” Id. at 780. The

Court found a “significant mismatch between the decision the Secretary made and

the rationale he provided,” which the Court characterized as “contrived.” Id. at 783–

84. Even where “review is deferential,” the Court wrote, the judiciary ought not

“exhibit a naiveté from which ordinary citizens are free,” or else “judicial review”

would be “an empty ritual.” Id. at 785 (quoting United States v. Stanchich, 550 F.2d

1294, 1300 (2d Cir. 1977)).

As for the case at hand, President Trump has made several statements that the

court can and should consider to determine whether his purported legal basis for

calling forth the National Guard to Portland is pretextual. For example, in the Truth

Social post that served as the President’s order authorizing the deployment of the

Guard, the President declared that he was deploying the troops “to protect War

ravaged Portland, and any of our ICE Facilities under siege.” Dist. Ct. Dkt. 146 at

60 25-6268 14 (emphasis added). The President has made other similar statements identifying

local crime and disorder as justification for his decision to activate the Guard:

• “There’s a huge problem in Portland. I’ll tell you what the problem is crime, OK? Crime.” Remarks: Donald Trump Signs an Executive Order on Alaskan Energy and Minerals, Roll Call (Oct. 6, 2025), https://perma.cc/TAG8- XNGK. • “Portland is—is on fire. Portland’s been on fire for years and not so much saving it. We have to save something else because I think that’s all insurrection. I really think that’s really criminal insurrection.” Id. • “I believe that the Portland people are scared. You look at what’s happened with Portland over the years. It’s—it’s a burning hell hole.” Id.

The President himself appears to have questioned whether the reality in

Portland diverged from his understanding. Following a conversation with Oregon

Governor Tina Kotek, the President recounted asking the governor: “‘Well wait a

minute, am I watching things on television that are different from what’s happening?

My people tell me different.’ They are literally attacking and there are fires all over

the place . . . it looks like terrible.” Evan Watson, Trump Questioned Perception of

Portland Before Approving Military Plan: ‘Am I Watching Things on Television That

Are Different from What's Happening?’, KGW8 (Sept. 28, 2025),

https://perma.cc/T88B-VMDA. During that same conversation, Governor Kotek

said she made it “abundantly clear” that the situation in Portland was under control:

“Portland and the State of Oregon believe in the rule of law and can manage our own

local public safety needs.” Tina Kotek, (GovTinaKotek), X (Sept. 27, 2025, at 1:09

PM), https://perma.cc/TZ6T-S8TK.

61 25-6268 On another occasion, the President stated that the activities warranting the

mobilization of the National Guard “are not occurring in isolation,” but are instead

“similar to other ongoing efforts in multiple States and cities around the country to

disrupt the faithful enforcement of Federal law.” Donald J. Trump, Department of

War Security for the Protection of Federal Personnel and Property in Illinois, The

White House (Oct. 4, 2025), https://perma.cc/MP4M-WK3J. Accordingly, the court

should not consider the President’s statements about Portland in isolation. In his

speech to senior military leadership in September 2025, the President remarked that

“the Democrats run most of the cities that are in bad shape” and declared that his

administration would “straighten them out one by one.” Speech: Donald Trump

Addresses Military Leadership in Quantico, Virginia, Roll Call (Sept. 30, 2025),

https://perma.cc/4EUD-86TV (emphasis added). He then told the audience that “we

should use some of these dangerous cities as training grounds for our military,

National Guard.” Id. (emphasis added).

Statements the President has made about other cities are therefore relevant to

the question of whether ordinary crime control is the animating force behind the

National Guard deployments, as opposed to a genuine inability to enforce federal

law:

• “[W]e’re going to make Chicago really great again. And we’re going to stop this crime. Then we’re going to go to another one. And we’re going to go city by city. We’re going to have safe cities.” Remarks: Donald Trump Signs an Executive Order on Alaskan

62 25-6268 Energy and Minerals, Roll Call (Oct. 6, 2025), https://perma.cc/TAG8-XNGK. • “We have to make sure that our cities are safe. And it’s turning out—and—and we started with DC. It’s been so successful.” Id.

And as for Memphis, the White House’s official memorandum on the mobilization

of the National Guard claims only that the city “is suffering from tremendous levels

of violent crime” and states that the National Guard will “support public safety and

law enforcement operations” in their mission to “end street and violent crime.”

Donald J. Trump, Restoring Law and Order in Memphis, The White House (Sept.

15, 2025), https://perma.cc/F23U-BGCU.

Whatever conclusions may be drawn from the consideration of such

statements is for the court to decide, but the court should consider them. And if,

after considering these statements and all other relevant facts, the court determines

that the President’s “course of action was not supported by the evidence before him,

and his stated rationale was pretextual,” then his order may not stand. Dep’t of Com.,

588 U.S. at 773–74.

IV. CONCLUSION

I respectfully urge the en banc panel to take account of the role of the

Domestic Violence Clause in this case and to fix a standard of review that will

respect its guarantee of state primacy over “domestic Violence,” U.S. Const. art. IV,

§ 4, and the surety role of the United States in securing “domestic Tranquility,” U.S.

Const. pmbl. The Domestic Violence Clause captured the Framers’ carefully crafted

63 25-6268 balance of interests between the states and the federal government. Because “the

state has no more important interest than the maintenance of law and order,” Sterling,

287 U.S. at 399, there is no greater threat to the sovereignty of the states than an

assertion of federal control over their domestic affairs.

64 25-6268 FILED DEC 8 2025 State of Oregon v. Trump, No. 25-6268 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS TUNG, Circuit Judge, statement respecting the grant of rehearing en banc:

I write in response to Judge Bybee’s statement. Judge Bybee makes two

claims—first, that a judge can review a President’s determination that an exigency

exists to call forth the National Guard to execute the federal laws; and second, that

the President must receive consent from a State before he can call forth the National

Guard of that State. Respectfully, Judge Bybee is wrong on both points. Our

Constitution, the statute at issue, and Supreme Court precedent confirm that judicial

interference in a matter assigned to the political branches would be improper, and

that a State need not consent before the President can call forth the National Guard.

I.

The Constitution gives Congress the power to “provide for calling forth the

militia” (today’s National Guard). Art. I, § 8, cl. 15. And in exercising that power,

Congress authorized the President to “call into Federal service members and units

of the National Guard of any State in such numbers as he considers necessary to . . .

execute [the federal] laws” “[w]henever . . . the President is unable with the regular

forces to execute the laws of the United States.” 10 U.S.C. § 12406.

A.

Who is to decide when that condition pertains? Read most naturally, the

statute assigns to the President the task of determining when he “is unable” to

execute the laws in the manner described. Indeed, it would be anomalous for Congress or judges to make that determination; they do not execute the federal laws

and hence could not adequately assess whether “the President is unable with regular

forces to execute” those laws. The President is entrusted with the power and duty to

“take Care that the Laws be faithfully executed” (Art. II, § 3), and he serves as the

“Commander in Chief” of “the Militia of the several States, when called into actual

Service of the United States” (Art. II, § 2).

Accordingly, while Congress supplies the conditions for when a militia can be

called forth to execute the federal laws (here, whether the President is unable to

execute the laws), it would appear most natural for Congress to assign to the person

vested with the power to execute the laws the power also to determine when he is

unable to execute those laws. See Martin v. Mott, 25 U.S. (12 Wheat.) 19, 31 (1827)

(“The power itself is confided to the Executive of the Union, to him who is, by the

constitution, ‘the commander in chief of the militia, when called into the actual

service of the United States,’ whose duty it is to ‘take care that the laws be faithfully

executed,’ and whose responsibility for an honest discharge of his official obligations

is secured by the highest sanctions. He is necessarily constituted the judge of the

existence of the exigency in the first instance[.]”); see also R. Epstein, Executive

Power, the Commander in Chief, and the Militia Clause, 34 Hofstra L. Rev. 317,

321–22 (2005) (“The use of the indirect verb construction (‘provide for the calling

forth’) makes it clear that Congress itself does not have the power to call forth the

2 militia, but in fact must pass some statute which will decide how and when the militia

shall be called into the United States. . . . [T]he clear implication is that it can set by

rules and regulations the conditions under which the President may, as commander

in chief, call the militia into actual service.”). Congress made that assignment here.

Not to itself, not to the courts.

Pursuant to its militia-clause power, Congress could have assigned to the

judiciary some role in determining exigency, despite the anomaly that would create.

But it did not do that here. In the past, Congress did require a judicial notice of

exigency before the President could summon the militia. Under the 1792 Militia

Act, the President first had to obtain a notice from “an associate justice or the district

judge”—finding that the “execution” of the federal laws was “obstructed” by

“combinations too powerful to be suppressed by the ordinary course of judicial

proceedings.” Act of May 2, 1792, ch. 28, § 2, 1 Stat. 264. But just three years later,

Congress removed that requirement after President Washington put down the

Whiskey Rebellion. Act of February 28, 1795, ch. 36, § 2, 1 Stat. 424; see also R.

Coakley, The Role of Federal Military Forces in Domestic Disorders, 1789–1878,

at 67–68 (1988) (“The new act of 28 February 1795 deleted the requirement that the

president obtain a judicial certificate before using the militia . . . . By his actions in

the Whiskey Rebellion, Washington had apparently dissipated the fears expressed in

3 1792 that these powers ‘could not with safety be entrusted to the President of the

United States.’”). 1

No such judicial-certification requirement has been reinstated since. The

import of that history is clear: whereas Congress had previously experimented with

requiring a judge to certify the existence of an exigency to enable the President to

call forth the militia, Congress now vests the President with exclusive discretion in

determining whether that exigency exists.

Supreme Court precedent affirms the President’s exclusive discretion in this

area. In Martin v. Mott, the Court held, in interpreting the Militia Act of 1795 (a

precursor to the statute here), that the “authority to decide whether the exigency has

arisen, belongs exclusively to the President” and “his decision is conclusive upon all

other persons.” 25 U.S. at 30. No ifs, ands, or buts. The Court reasoned that “this

construction necessarily results from the nature of the power itself, and from the

manifest object contemplated by the act of Congress.” Id. That “power,” Justice

Story wrote, “is to be exercised upon sudden emergencies, upon great occasions of

state, and under circumstances which may be vital to the existence of the Union,”

1 Even Judge Bybee (before becoming a judge) recognized that this deletion was a “significant change” making clear that “[t]he need to intervene was left entirely to the President’s judgment.” J.S. Bybee, Insuring Domestic Tranquility: Lopez, Federalization of Crime, and the Forgotten Role of the Domestic Violence Clause, 66 Geo. Wash. L. Rev. 1, 43 n.270 (1997). 4 and a “prompt and unhesitating obedience to orders is indispensable to the complete

attainment of the object.” Id.

The prospect of a judicial countermand inverts this scheme. Allowing a judge

to second-guess a presidential determination of exigency—while superimposing an

entire fact-finding and adjudicatory process—would undermine the “nature of the

power” to meet the exigency and eviscerate the “prompt[ness]” with which Congress

authorized the President to act in calling forth the militia. Nothing in our

constitutional order requires that result. Indeed, the wide discrepancies among

judges as to the facts, the inferences to be drawn from the facts, and whether those

facts and inferences give rise to an exigency (compare, e.g., Oregon v. Trump, 157

F.4th 1013, 1019–24, 1029–31 (9th Cir. 2025) (per curiam), with id. at 1044–45,

1047–53 (Graber, J., dissenting)), only vindicate Martin’s holding that the

President’s determination is (and ought to be) conclusive.

The absence of a judicial countermand does not mean that there would be no

check on purported abuses of executive power. Congress could reinsert a judicial-

notification requirement or a variant thereof anytime it wishes, or impose other

restrictions concerning the grounds on which the militia could be called. See 3 The

Debates in the Several State Conventions on the Adoption of the Federal

Constitution 426 (J. Elliot ed., 2d ed., 1996) [hereinafter Elliot’s Debates] (when

responding to an opponent who “disapprove[d] of [the Militia Clause] because it

5 does not say in what particular instances the militia shall be called out to execute the

laws,” George Nicholas (a Virginia delegate) explained that “particular instances

must be defined by the legislature”). The Framers designed our constitutional

scheme to reserve the power to call forth the militia to the political branches (the

Legislature and Executive) and to divide it between them to avoid abuse by a single

branch. See Art. I, § 8, cl. 15; see also Gilligan v. Morgan, 413 U.S. 1, 10 (1973)

(“It would be difficult to think of a clearer example of the type of governmental

action that was intended by the Constitution to be left to the political branches

directly responsible—as the Judicial Branch is not—to the electoral process.

Moreover, it is difficult to conceive of an area of governmental activity in which the

courts have less competence. The complex subtle, and professional decisions as to

the composition, training, equipping, and control of a military force are essentially

professional military judgments, subject always to civilian control of the Legislative

and Executive Branches. The ultimate responsibility for these decisions is

appropriately vested in branches of the government which are periodically subject

to electoral accountability.”).

Put simply, intervention by a non-political, unelected branch (the Judiciary)

was not contemplated, unless Congress expressly authorized such intervention.

Congress did not do so here.

6 Other features of our constitutional order would serve to curb executive

excess. If executive action as authorized by Congress becomes too unpopular, the

people would be free to remove their elected officials (the President included)

through the franchise. See 3 Elliot’s Debates 421 (Marshall) (“[A]s the government

was drawn from the people, the feelings and interests of the people would be

attended to, and that we should be safe in granting them power to regulate the

militia.”). 2 Importantly, too, the militia itself was viewed by the founding generation

as a check against (and not as a means of enabling) federal abuse. See 3 Elliot’s

Debates 400 (Randolph) (“Shall we be afraid that the people [referring to the

militia], this bulwark of freedom, will turn instruments of slavery?”).3 After all, the

2 See also 3 Elliot’s Debates 381–82 (Madison) ( “[A] government of a federal nature . . . ha[s] no temptation whatever to abuse this power; such abuse could only answer the purpose of exciting the universal indignation of the people, and drawing on themselves the general hatred and detestation of their country.”); 4 Elliot’s Debates 64 (Maclaine) (“It cannot be supposed that the representatives of our general government will be worse men than the members of our state government.”); 4 Elliot’s Debates 209 (Spaight) (“The power of calling forth the militia is given for the common defence; and can we suppose that our own representatives, chosen for so short a period, will dare to pervert [this] power . . . ?”); The Federalist No. 29, at 183 (C. Kesler ed., 2003) (“If we were even to suppose the national rulers actuated by the most ungovernable ambition, it is impossible to believe that they would employ such preposterous means to accomplish their designs.”); 3 The Records of the Federal Convention of 1787 at 319 (M. Farrand ed., 1911) [hereinafter Farrand’s Records] (Randolph) (“The president, who commands [the militia] when in the actual service of the union, is appointed secondarily by the people. — This is a further security.”). 3 See also 3 Elliot’s Debates 401 (Randolph) (“Is it not incredible that men who are interested in the happiness of their country—whose friends, relations, and 7 militia was composed of everyday citizens (not professional soldiers), the officers of

which were (and still are) appointed by the State, not the federal government. 4 St.

George Tucker, 1 Blackstone’s Commentaries: With Notes of Reference to the

Constitution and Laws of the Federal Government of the United States and of the

Commonwealth of Virginia, app. 274 (1803) (“We have seen that the appointment of

the officers of the militia, and the authority of training them, are expressly reserved

to the states, by this article: this was considered as a most important check to any

possible abuse of power in the federal government[.]”). 5

connections, must be involved in the fate of their country — should turn against their country?”); 4 Elliot’s Debates 64 (Maclaine) (“Will the militia be called out by the general government to enslave the people — to enslave their friends, their families, themselves?”); 3 Farrand’s Records 318–19 (Randolph again making the same point); The Federalist No. 29, at 181 (“There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia . . . . What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests?”). 4 While modern Militia Acts have given the National Guard a split federal and state role, the core of the National Guard remains true to the militia of the Founders. When not activated, they hold civilian jobs and live locally in their communities. See Perpich v. Dep’t of Def., 496 U.S. 334, 348 (1990). 5 See also 3 Elliot’s Debates 400–01 (Randolph) (“The state governments, having the power of appointing them, may elect men who are the most remarkable for their virtue of attachment to their country.”); 3 Farrand’s Records 318–19 (Randolph) (“In order to produce greater security, the state governments are to appoint the officers.”); The Federalist No. 29, at 181–82 (“What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the sole and exclusive appointment of the officers?”); The Federalist No. 46, at 296 (“[T]he existence of subordinate governments, to which the people 8 To be sure, our constitutional design recognized that “no precise bounds could

be set to the national exigencies[.]” The Federalist Papers No. 26, at 165 (C. Kesler

ed., 2003). But our Framers entrusted the “exercise of that power” to “the legislature

and executive” to work out. Id. at 166, 168. It is the product of our court-centric

minds that judges must be able to redress any claim that such inherently imprecise

bounds were transgressed—or else the sky would fall. But our Constitution does not

reflect that view.

B.

Judge Bybee has suggested that Martin v. Mott stands for the proposition that

the “conclusiveness” of the President’s determination applies only to militiamen in

the President’s chain of command. See Op. at 57 n.11. But that is not a credible

reading. In no uncertain terms, the Court held that “the authority to decide whether

the exigency has arisen, belongs exclusively to the President” and “his decision is

conclusive upon all other persons.” Martin, 25 U.S. at 30 (emphasis added); see

also Luther v. Borden, 48 U.S. (7 How.) 1, 45 (1849) (“Undoubtedly, if the President

in exercising this power shall fall into error, or invade the rights of the people of the

State, it would be in the power of Congress to apply the proper remedy. But the

are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition . . . .”); R. Delahunty, Structuralism and the War Powers: The Army, Navy, and Militia Clauses, 19 Ga. St. U. L. Rev. 1021, 1053–54 (2003). 9 courts must administer the law as they find it.”); The Orono, 18 F. Cas. 830, 830

(C.C.D. Mass. 1812) (No. 10,585) (Story, Circuit Justice) (“It does not belong to the

court to superintend the acts of the executive, nor to decide on circumstances left to

his sole discretion.”). “All other persons” clearly includes judges. To read Martin

as excluding judges amounts to nothing more than an Article III power grab, inviting

judicial intrusions into executive determinations that Congress has plainly vested in

the President.6

Nor has Sterling v. Constantin, 287 U.S. 378 (1932), supposedly clarified

Martin to mean that, while a President’s determination of exigency to call forth the

militia is accorded a great deference, judges can nevertheless review that

determination. Rather, it repeatedly reaffirmed Martin’s ruling that the President’s

determination was conclusive. See Sterling, 287 U.S. at 399 (“[T]he Executive is

appropriately vested with the discretion to determine whether an exigency requiring

military aid for that purpose has arisen. His decision to that effect is conclusive.”).

6 Dictum in Martin—that “[e]very public officer is presumed to act in obedience to his duty, until the contrary is shown”—does not somehow greenlight judicial review. 25 U.S. at 33. Indeed, in the next few sentences, the Court makes clear (again) that the President’s judgment was conclusive and not subject to review: “It is not necessary to aver [or plead], that the act which he may rightfully do, was so done,” because “[i]f the fact of the existence of the exigency were averred, it would be traversable [or denied], and of course might be passed upon by a jury; and thus the legality of the orders of the President would depend, not on his own judgment of the facts, but upon the finding of those facts upon the proofs submitted to a jury.” Id. 10 Sterling did not question whether the executive (there, the Texas governor) validly

determined an exigency to call forth the state militia. See id. at 401. Rather, Sterling

addressed whether executive action—subsequent to and separate from the calling

forth of the militia—could be reviewed for its constitutionality (i.e., action in which

the executive used the militia to enforce orders restricting the production of oil from

private wells). See id. at 388, 401–02 (“Fundamentally, the question here is not of

the power of the Governor to proclaim that . . . it is necessary to call military force

to the aid of the civil power. . . . The question before us is simply with respect to the

Governor’s attempt to regulate by executive order the lawful use of complainants’

properties in the production of oil.”).

Not surprisingly, the Court in Sterling held that such alleged violations of

private-property rights were reviewable in court, though the executive’s actions were

still given deference. See id. at 399 (“[T]here is a permitted range of honest

judgment as to the measures to be taken in meeting force with force, in suppressing

violence and restoring order . . . .” (emphasis added)); id. at 400 (“Such measures,

conceived in good faith, in the face of the emergency and directly related to the

quelling of the disorder or the prevention of its continuance, fall within the discretion

of the Executive in the exercise of his authority to maintain peace.” (emphasis

added)).

11 Plaintiffs are not alleging the invasion of any private-property rights here.

Plaintiffs challenge only the President’s determination to call forth and deploy the

militia (or to “federalize” Oregon’s National Guard)—not any separate or

subsequent invasion of individual rights that the militia may have caused. And that

determination, Martin and Sterling hold, is conclusive.

II.

Our constitutional history also makes clear that the President need not obtain

consent from States before he calls forth the militia to execute the federal laws.

Judge Bybee writes that the Domestic Violence Clause imposes such a requirement.

It does not.

Article IV, § 4 states that “The United States shall guarantee to every State in

this Union a Republican Form of Government, and shall protect each of them against

Invasion; and on Application of the Legislature, or the Executive (when the

Legislature cannot be convened) against domestic Violence.” Contrary to Judge

Bybee’s claim, the Domestic Violence Clause’s text and history prove that no State-

consent requirement exists.

On its face, the text of Article IV obligates the federal government to “protect”

a State if certain conditions are met. Nothing in the text limits Congress’s ability to

assign to the President the power to call forth the militia—let alone require that the

12 President obtain approval from a State before it can call forth the militia to execute

federal law.

The power to call forth the militia is addressed in an entirely different

constitutional article (see Art. I, § 8, cl. 15). If there were a requirement of State

consent—limiting Congress’s authority to provide for calling forth the militia (and

the President’s power to call it forth)—one would have expected to find such a

requirement in the Militia Clause or a surrounding provision. 7 But it is not there.

Indeed, the Constitution already expressly “reserv[es]” certain powers to the States

with respect to the militia—the power to “[a]ppoint[]” the militia’s “[o]fficers” and

to “train[]” the militia “according to the discipline prescribed by Congress[.]” Art.

I, § 8, cl. 16. That the Constitution did not require that Congress or the President

obtain consent from a State before calling forth the militia strongly suggests that no

such requirement exists. 8

7 See, e.g., Art. I, § 8, cl. 17 (“To exercise exclusive Legislation in all Cases whatsoever, over . . . all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings” (emphasis added)). 8 Judge Bybee discusses two delegates from the state ratification debates (Edmund Pendleton and James Bowdoin) to suggest that it was widely understood that the Domestic Violence Clause required State consent to call forth the militia. Op. at 15–16. That suggestion is incorrect. In fact, when considering the interaction of the Militia Clause and the Domestic Violence Clause, the delegates were primarily concerned about whether the clauses limited the power of the States to call forth their own militia “without an application to Congress.” See, e.g., 3 Elliot’s Debates 416– 17 (Henry), 417 (Corbin), 417–19 (Grayson), 419–20 (Marshall), 421 (Marshall), 13 The history of the Militia and Domestic Violence clauses reinforces that

conclusion. The federal and state ratifying conventions had considered multiple

proposals that would have given the States a veto power with respect to calling forth

the militia by the federal government. See 2 Elliot’s Debates 546 (“[N]or shall the

militia of any state be continued in actual service longer than two months . . . without

the consent of the legislature of such state[.]”).9 But all those proposals were

rejected. Cf. 3 Joseph Story, Commentaries on the Constitution of the United States

§ 1197 (1833) (“[T]hat the militia under the command of the national government

might be dangerous to the public liberty . . . produced some propositions of

amendment in the state conventions, which, however, were never duly ratified, and

have long since ceased to be felt, as matters of general concern.”). And those

422–24 (Henry), 424–25 (Madison). The debate thus focused on giving reassurance that the States retained the authority to call up their own militia. E.g., id. at 419 (Marshall) (“To me it appears, then, unquestionable that the state governments can call forth the militia[.]”); see also Op. at 15 (quoting Madison). In any event, neither Pendleton nor Bowdoin expressed the view that the Domestic Violence Clause restrained the President in calling forth the militia to execute federal laws. See 3 Elliot’s Debates 441; 2 Elliot’s Debates 85–86. 9 See also 2 Elliot’s Debates 406 (“That the militia of any state shall not be marched out of such state without the consent of the executive thereof[.]”); id. at 552 (“The following amendments were . . . negatived . . . 1. That the militia . . . shall not be marched, beyond the limits of an adjoining state, without the consent of their legislature or executive.”); 3 Elliot’s Debates 378–79 (Mason) (“I wish such an amendment as this—that the militia of any state should not be marched beyond the limits of the adjoining state; . . . I wish such a check, as the consent of the state legislature, to be provided.”). 14 proposals were rejected because the ratifiers believed that Congress provided a

sufficient check against any abuse by the President in calling forth the militia, and

that “requiring [State] consent” would “destroy the general government,” deprive it

of the ability to swiftly counteract invasions, rebellions, or obstructions in the

execution of federal laws, and undermine the security of the Union. 3 Elliot’s

Debates 383 (Madison). 10

To read the Domestic Violence Clause as requiring the President to obtain

State consent here, as Judge Bybee would, is thus wrong. To be sure, the Clause

appears to require that the federal government receive an “Application” from the

State for assistance before the federal government can “protect” the State against

“domestic Violence.” Art. IV, § 4. And that would make sense: what business would

the federal government have to interfere in matters purely “domestic”—that is,

involving disturbances that implicate violations of state law—unless the State

10 See also 3 Elliot’s Debates 390 (Nicholas) (noting that such an amendment would “put an obstacle in the way of the general government, and put it in the power of the state governments to take away the aid of the militia.”); id. at 421 (Marshall) (“No state will spare to another its militia, which it conceives necessary for itself. It requires a superintending power, in order to call forth the resources of all to protect all.”); id. at 424 (Madison) (“If ever America should be attacked, the states would fall successively. . . . [A]s each state will expect to be attacked, and wish to guard against it, each will retain its own militia for its own defence.”); 1 Elliot’s Debates 372 (Martin) (“They said that . . . if the militia was under the control and the authority of the respective states, it would enable them to thwart and oppose the general government.”). 15 requested help? But “violence” in a State is no longer “domestic” when federal laws

are thwarted, as even Judge Bybee appears to recognize. Op. at 7 (“As the

Constitution expressly denies to the states the right to engage in war or repel

invasion, art. I. § 10, cl. 3, ‘domestic Violence’ refers to matters within a state,

including crime, riot, and insurrection or rebellion against the state.” (emphasis in

original)).11

When federal laws are thwarted, the Militia Clause provides that Congress can

provide for calling forth the militia to execute those laws. If it wanted, Congress

could have required the President to obtain State consent (cf. supra at 3). But

Congress did not do so here. That is enough to refute Judge Bybee’s thesis.

To add error upon error, Judge Bybee asserts that judicial review is necessary

to address violations of the Domestic Violence Clause. Op. at 49–54. The Supreme

Court already rejected that view: any purported violation of that Clause, as with any

11 See also The Federalist No. 21 at 135 (“Without a guaranty the assistance to be derived from the Union in repelling those domestic dangers which may sometimes threaten the existence of the State constitutions, must be renounced.” (emphasis added)). Judge Bybee quotes St. George Tucker—“every pretext for intermeddling with the domestic concerns of any state, under colour of protecting it against domestic violence is taken away, by that part of the provision which renders an application from the legislative, or executive authority of the state endangered, necessary to be made to the federal government, before [its] interference can be at all proper.” Op. at 4. But this quotation says nothing about requiring an “application” from a State before the President can call forth the militia to execute federal law. 16 supposed violation of the Guaranty Clause, is simply not justiciable. E.g., Pac.

States Tel. & Tel. Co. v. State of Oregon, 223 U.S. 118, 147–48 (1912) (noting that

“if the question of what was the rightful government within the intendment of § 4 of

article 4 was a judicial one, the duty to afford protections from invasion and to

suppress domestic violence would be also judicial” and rejecting the notion that

either the Guaranty Clause or the Domestic Violence Clause was justiciable (citing

Luther, 48 U.S. at 43)). Rather, Congress is the branch entrusted with determining

“the means proper” “to fulfil this guarantee” against “domestic violence,” and

Congress resolved that “the power of deciding whether the exigency had arisen upon

which the government of the United States is bound to interfere, is given to the

President.” Luther, 48 U.S. at 43. The Court explained that Congress “wisely”

“thought otherwise” about “plac[ing] it in the power of a court to decide when the

contingency had happened,” as “[t]he ordinary course of proceedings in courts of

justice would be utterly unfit” given that “the interposition of the United States must

be prompt.” Id. at 43–44.

So it is that both the text and history of the Domestic Violence Clause conspire

to preclude Judge Bybee’s claim that State consent is required before the President

can call forth the militia to execute federal law.

17 B.

Despite what the text and history show, Judge Bybee contends that past

practice of federal-state cooperation prove that the Domestic Violence Clause

required the President to obtain State consent to call forth the militia to enforce

federal law. Judge Bybee marshals a slew of historical examples that supposedly

make the point. But none of his examples, in fact, do so. Rather, they prove the

opposite—that the President had the power, without State consent, to call forth the

militia to execute federal law, and that any “cooperation” between the President and

a State was a matter of prudence and policy, not legal necessity.

Judge Bybee’s principal example of a President supposedly needing consent

from a State is from the Whiskey Rebellion. But the historical record on which

Judge Bybee relies debunks his thesis. Contrary to Judge Bybee’s claim (see Op. at

22), President Washington did not acknowledge that consent from Pennsylvania’s

governor was needed to call forth the militia to enforce the federal tax laws in that

State. Indeed, the governor himself expressed that the President had the authority to

call forth the militia without the State’s consent. Letter from Thomas Mifflin to

George Washington (Aug. 5, 1794), in 4 Pennsylvania Archives 93 (J.B. Linn &

W.H. Egle eds., 2d ser. 1896). The governor disagreed with the President’s decision

to summon the militia, stressing to the President that the militia “ought not to be

employed” and reasoning that “on the principles of policy as well as of law, it would

18 be improper in me to employ the military power of the State while its Judiciary

authority is competent to punish the offenders” (id. at 89, 92 (emphasis added))—

even though, by this point, President Washington had already obtained notification

from a federal judge (required under the Militia Act of 1792) that “judicial

proceedings” were not sufficient. Letter from James Wilson to George Washington

(Aug. 4, 1794), in 4 Pennsylvania Archives 70. Nevertheless, the governor stated

that, when it came to enforcing federal law, the President had conclusive authority

to call forth the militia in his “judgment” and “on such evidence as you approve.”

Letter from Thomas Mifflin to George Washington (Aug. 5, 1794), in 4 Pennsylvania

Archives 93.

The governor’s statement is worth quoting here in full, because his

acknowledgment of the President’s conclusive authority could not be any clearer and

so eviscerates Judge Bybee’s theory: “I have hitherto, indeed, only spoken as the

Executive Magistrate of Pennsylvania, charged with a general superintendence and

care that the laws of the Commonwealth be faithfully executed, leaving it, as I ought,

implicitly to your judgment, to choose, on such evidence as you approve, the

measures for discharging the analogous trust which is confided to you, in relation to

the laws of the Union.” Id. at 93 (emphasis added).

The response the governor received is equally explicit. In a letter, the

Secretary of State (directed by the President) addressed the governor’s “impl[ied] []

19 virtual disapprobation of that plan of conduct on the part of the General

Government.” Letter from Edmund Randolph to Thomas Mifflin (Aug. 7, 1794), in

4 Pennsylvania Archives 97. The Secretary stated plainly that the governor could

not “fail to acquiesce” nor “refuse [his] concurrence in the Opinion which the

President entertains.” Id. at 101. The reason, the Secretary stated, was fundamental

to our federal system: “The people of the United States have established a

Government,” “[t]hey have instituted Executive Organs for administering that

government,” and “their Representatives have established the rules by which those

organs are to act.” Id. at 102. Accordingly, the people “could never be expected to

approve that the care of vindicating their authority, of enforcing their laws”—when

that “authority” is “attacked”—“should be transferred from the officers of their own

government to those of a State[.]” Id.

The next example that Judge Bybee invokes also proves the opposite of his

claim. As Judge Bybee tells it (see Op. at 23–25), the federal government’s handling

of the creation of the Trans-Oconee Republic—a short-lived but disruptive

settlement within Georgia—shows that the President needed State consent before

calling forth the militia to execute federal law. But that is just not true. Judge Bybee

quotes a letter from Secretary of State Edmund Randolph to President Washington

in which he acknowledged that “the general government cannot of its own accord

interfere in a case of domestic violence” without an application from the State for

20 aid. See Letter from Edmund Randolph to George Washington (July 17, 1794), in

16 The Papers of George Washington, Presidential Series 368 (D.R. Hoth & C.S.

Ebel eds., 2011). But by “domestic violence,” Randolph meant just that: violence

that was purely domestic to the State, implicating only violations of state law (such

as insurrection against the state government), not violations of federal law. See id.

By contrast, if federal law were at stake (“something else being done against the

United States”), Randolph advised, “so far as mere power is concerned, it is

presumed that the President may call forth the militia of Georgia or of any other

State[.]” Id. at 369.

In this affair, federal law was at stake, because the agitators for independence

from Georgia occupied tribal land and the President had the statutory authority to

“remove” them from that land. See id. (referencing Act of Mar. 1, 1793, § 5, 1 Stat.

329–32). Thus, in his letter to the governor of Georgia, the Secretary of War Henry

Knox wrote that the President had the authority to call up federal forces: “it might,

perhaps, be proper to leave this attempt, under its present circumstances, to the

management of your own State, if it were not that the laws of the United States are

infringed thereby.” See Letter from Henry Knox to George Mathews (July 28, 1794),

in American State Papers: Indian Affairs 501 (1998) (emphasis added). As a

prudential matter, however, the President did not intervene, instead “entertain[ing]

the most perfect reliance on [the governor’s] exertions, to repel the mischief arising

21 from this quarter.” Id. This example proves, contrary to Judge Bybee’s contention,

that exercising prudential judgment in withholding the militia does not negate the

President’s power to call it forth.

Judge Bybee’s example from the Fries Rebellion does not help him either.

Judge Bybee concludes (see Op. at 26) that a “request” from President Adams to

Pennsylvania’s governor to dispatch militia to quash rioting against a federal tax on

land amounted to the President’s acknowledgment that obtaining the governor’s

consent was required. Not so. Once again, the inference that Judge Bybee seeks to

draw is contradicted by the historical record. The President’s “request” was in fact

an order, and not merely seeking consent. On behalf of the President, the Secretary

of War “request[ed] your Excellency will order to hold [certain “troops of cavalry”]

in readiness to march[.]” Letter from James McHenry to Thomas Mifflin (Mar. 20,

1799), in W.W.H. Davis, The Fries Rebellion 75 (1899) (emphasis added). And

“request” here was used as shorthand for “requisition, on [the] [g]overnor [], for

militia.” Id. (ed. note) (emphasis added). In other words, an order. And the

governor construed the President’s “request” as such, immediately directing his

adjutant general to comply. Letter from Thomas Mifflin to Peter Baynton (Mar. 20,

1799), in Davis, The Fries Rebellion 76. To be sure, “request” in other contexts can

mean the mere “asking for permission.” But in this context, a “request” does not

22 mean “asking for permission,” any more than a father “requesting” his son to do

homework is asking for his son’s permission.

Judge Bybee’s last example from the Founding Era fares no better. Judge

Bybee suggests that, during the Baltimore riots of 1812, President Madison

acknowledged the constraints supposedly imposed by the Domestic Violence Clause

on his constitutional authority to call forth the militia, when he “refused to deploy

federal force even after mob violence took place at a federal building, taking the

view that the response properly belonged to local authorities.” See Op. at 27–28.

But Judge Bybee gets the history all wrong. Rather than refusing to use federal force

in the face of “mob violence . . . at a federal building” (as Judge Bybee asserts),

President Madison observed from reports that there was no violence there at all: “I

never considered an assault by the mob on the post office as probable, nor allowed

myself to doubt that, if made, the local authority was both able and willing to crush

it.” Letter from James Madison to John Montgomery (Aug. 13, 1812), in 5 The

Papers of James Madison, Presidential Series 150 (J.C.A. Stagg et al. eds., 2004).

So much for Judge Bybee’s historical examples from our early Republic.

Those examples offer zero support for his claim that the President was required to

obtain State consent before calling forth the militia to execute federal law. At most,

the examples confirm the point that if the violence were purely “domestic”—that is,

involving a violation of state law or insurrection against the government of the

23 State—then the federal government likely has no authority to send troops into that

State unless the State’s legislature (or executive, if the legislature cannot convene)

applies for federal support. And in fact, as explained, the historical examples offered

by Judge Bybee only affirm the President’s power to call forth the militia to execute

federal law without State consent.

Judge Bybee’s more modern examples stray even further afield from his

thesis. His examples either are irrelevant to our question or prove the point that the

President had the power to call forth the militia to execute federal laws without State

consent. For instance, Judge Bybee discusses a litany of instances involving

violations of state law or insurrections against state government—the Williamsport

Canal riots, the Dorr Rebellion, guerilla warfare in Missouri in 1863, the Brooks-

Baxter dispute, the 1877 railroad strike, the 1902 mining strike, the Detroit riots, and

the Rodney King riots. See Op. at 29–42. But none of these examples answers the

question here: whether the President must obtain consent from a State before he can

summon the militia to execute federal law.

Judge Bybee’s other modern examples undercut the very proposition he seeks

to prove. Judge Bybee addresses the Pullman Strike of 1894. But there (as he

acknowledges), President Cleveland deployed federal forces into Chicago to enforce

a federal injunction over the objection of the governor. See Op. at 36–37. Judge

Bybee calls this action a “marked departure” from past practice. Id. at 38. But it is

24 not. History—properly construed (and not as Judge Bybee has revised it)—validates

the President’s power to call forth the militia to execute federal law without State

consent. President Cleveland’s actions are entirely consistent with that history.

Similarly, Judge Bybee recounts examples in which various Presidents

deployed federal forces “without state consent” to enforce the promises of equal

protection and due process under the Fourteenth Amendment. See Op. at 42–48.

All these examples are of a piece with earlier events: they show that the President

need not procure State approval before using the militia to enforce federal law. Judge

Bybee describes the Fourteenth-Amendment cases as “[a]n important exception” to

the requirement of obtaining State consent—an “exception” supposedly rooted in

Section 5 of the Fourteenth Amendment. Id. at 48. But as explained, these cases

are no exception at all. They are wholly aligned with past practice. 12 Nor does Judge

Bybee explain why Section 5 of the Fourteenth Amendment (that “Congress shall

have power to enforce, by appropriate legislation, the provisions of this article”)

dispenses with the so-called requirement to secure State consent, while the Militia

Clause (that “Congress shall have Power . . . [t]o provide for calling forth the Militia

to execute the Laws of the Union”) retains that requirement. He cannot.

12 Judge Bybee also briefly discusses how President Nixon summoned the National Guard to enforce federal law in response a postal worker strike in 1970. But Judge Bybee concedes that this example does not support his claim, simply “not[ing] the case here out of completeness.” Op. at 41. 25 III.

Even if one were to overlook Judge Bybee’s historical revisionism, the final

stake through his theory is this: his failure to propose a principled alternative. Judge

Bybee proposes a test to assess the validity of the President’s determination to call

forth the militia. While Judge Bybee disagrees with the substantial deference that

the panel in Newsom v. Trump, 141 F.4th 1032, 1051 (9th Cir. 2025), gives the

President, he does not believe that the President should receive no deference at all.

Instead, Judge Bybee offers “a three-step burden-shifting scheme” purportedly

“informed by the structure, history, and tradition of the Constitution.” Op. at 56.

Truth be told, Judge Bybee’s “solution” is as hopelessly complicated as it is

concocted. Where exactly does this test come from? Why three steps; why any

steps? If Judge Bybee is borrowing his test from employment law—see McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)—what makes employment

relations comparable to exercises of presidential power? See Op. at 56 n.10. Under

one of Judge Bybee’s “steps,” a State can rebut the “prima facie deference” given to

a President’s determination by “consider[ing]” a multitude of “factors”—such as

“whether state officials were willing to cooperate”; “whether federal civilian tools

remained available”; and “whether the deployment infringes on countervailing state

interests.” Op. at 57–58. Of course, none of these factors is dispositive, nor does

Judge Bybee’s list appear exhaustive. And how to apply any of those factors—e.g.,

26 what “civilian tools” are “available”; what counts as an “infring[ement] of a

“countervailing” interest—appears beyond the judicial ken.

* * *

Rather than invent a makeshift framework, let us return to what our

Constitution provides. Pursuant to it, Congress assigned to the President the power

to call forth the militia when he determines he is unable to execute the federal laws.

Judge Bybee’s work (mountainous as it is) does nothing to refute that principle—his

is, in the end, a great labor producing a mouse. I respectfully register my

disagreement with his statement in support of en banc review.