Authority to call out the Guard

[James48]

So….i started looking at the actual law that is on the books- Finding out what authority the President has vs. the Congress when it comes to the National Guard.

The Constitution specifically identifies Congress as having the power to call out the militia.

It wasn’t until 1956 that Congress actually allowed the President, in certain specific cases, to call up the Guard to protect black’s rights in southern states.

This is interesting- I don’t think this allows for Trump to call up the Chicago Illinois Guard - look at the language: what do you think?
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From 10 USC 253

§253. Interference with State and Federal law
The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it-
(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.
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That’s pretty much what allows the President authority to use the military. That also seems to conflict with the Posse Comitatus Act’s prohibition on using military for law enforcement.

[James48]

1. Update- found this-

Upon further review, it turns out Congress approved, back in 1968, authority for the President to send troops to Chicago and to Baltimore. (And several other places in the 1960’s). That is STILL ON THE BOOKS!
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Here- from section 254:
“ Proc. No. 3841. Obstruction of Justice in the State of Illinois Proc. No. 3841, Apr. 9, 1968, 33 F.R. 5497, commanded all persons engaged in violence in and about the City of Chicago and obstructing the enforcement of the laws to cease and desist therefrom and to disperse forthwith.

Proc. No. 3842. Obstruction of Justice in the State of Maryland Proc. No. 3842, Apr. 9, 1968, 33 F.R. 5499, commanded all persons engaged in acts of violence and obstructing the enforcement of the laws in and about the City of Baltimore to cease and desist therefrom and to disperse forthwith.
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Wow- so the legal authority he’s going to claim is that old 1968 authorization!