Does the Constitution give the President the power to send the National Guard into Chicago, or Portland, or Los Angeles? No, it does not.

Under the militia clause of the Constitution, only Congress – not the President – shall have the power “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”

Congress, in turn, has passed laws which delegated to the President the authority to federalize National Guard members in three circumstances: If the country is invaded or is in danger of invasion by a foreign nation; if there is a rebellion or danger of a rebellion against the authority of the federal government; or if the President is unable with regular forces to execute the laws of the United States.

There are now three lawsuits wending their way through the federal courts, brought by the governors of California, Oregon and Illinois, which challenge the President’s authority to send National Guard troops into Los Angeles, Portland, and Chicago.

The gist of the challenge in each case is that, although the presence of ICE agents may have resulted in demonstrations and even violence, there has been no conduct that amounts to an invasion or rebellion and nothing has occurred that is beyond the ability of local law enforcement to control.

Consider the case involving Portland. President Trump has asserted that Portland is “war ravaged”, that ICE facilities there are “under siege from attack by Antifa, and other domestic terrorists”, which includes “professional agitators” being paid by rich people, “anarchists” and “crazy people” trying to “burn down buildings, including federal buildings.”

Certainly, if those statements were accurate, the President would seem clearly to have the authority to send National Guard troops to Portland. However, the federal judge assigned to the case – a Trump appointee – recently issued an opinion which carefully reviewed the evidence before her and found that “whatever factual basis the President may have for these allegations, nothing in the record suggests anything of this sort was occurring”.

In the face of the President’s failure to present evidence in support of his assertions, the court concluded that his determination to send National Guard troops to Portland “was simply untethered to the facts” – a polite way of saying that the President was not telling the truth.

Well, so what? What difference does it make if the President is simply making up a story to support his desire to send National Guard troops into these cities, which just happen to be located in states which did not support the President in the last election and which have Democratic governors? It matters because it brings us one step closer to a regime of martial law which inevitably leads to the loss of the liberties guaranteed to us all by the Constitution. The judge in the Portland case put it:

As “[T]his country has a longstanding and foundational tradition of resistance to government overreach, especially in the form of military intrusion into civil affairs….This historical tradition boils down to a simple proposition: this is a nation of Constitutional law, not martial law.”

And in the words of James Madison when addressing the Constitutional Convention in 1787, as quoted in the same opinion, “[a] standing military force, with an overgrown Executive, will not long be safe companions to liberty. The means of defence [against] foreign danger, have been always the instruments of tyranny at home”.

Is sending National Guard troops into Los Angeles, Portland and Chicago only a prelude to instituting a form of martial law throughout the country? And once martial law has been put in place, how long would it last?

- Alan Cooper, Rochelle