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The Trump Regime has a fondness for invoking obscure and arcane laws in a desperate attempt to cloak their radical agenda in some semblance of legality.
Trump cited the Alien Enemies Act of 1798 to deport Venezuelans, claiming the law gives the President broad power in times of “invasion.” He tried to use the Alien Registration Act/Registration Provisions of 1940 to require any noncitizen to register and carry proof of registration, a relic of the disgraceful Japanese American internment in WWII. Under the Impoundment Control Act of 1974, Trump has attempted to nullify Congress’s Constitutional authority to authorize spending.
Now, Trump and his apparatchiks are signaling he intends to use the Insurrection Act of 1807 in his personal war against “Democratic” cities. The goal is for Trump to assert that any order he gives the military will be a lawful order that must be followed under a president’s power as Commander-in-Chief. Stephen Miller’s normal creepy facade ratchets up to a feverish lust when he talks about the “plenary” power of the President.
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If there is one lesson from the Trump era, it is the rapidity with which the unimaginable becomes inevitable. We should assume Trump intends to use the Insurrection Act to transform the world’s largest military into his personal sword of vengeance in the retribution campaign he promised and is now delivering.
Fortunately, governors of states high on Trump’s hit list have tools to counter Trump’s threats. It’s time for the governors of Trump’s target states to use existing laws to muster and equip powerful state militias.
The Founding Fathers clearly took the need — and possible threat — of state militias with the utmost seriousness. There are six references to state militias in the Constitution, most famously the Second Amendment. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The subsequent interpretations of that one sentence are why we live in a country with more guns than citizens.
The legal basis of state National Guards is based on the Constitution’s concept of state militias. As Trump asserts authority to deploy National Guard units, the legality of his authority is a subject of ongoing litigation. But there is no question that the National Guard is under both federal and state control.
Leading up to World War II, all state National Guard units were federalized as an arm of the U.S. military. Congress then passed the State Guard Act of 1940, permitting states to raise “defense forces” that would explicitly remain under the states’ total control. In 1955, Congress made this power permanent, codifying it as 32 U.S.C. § 109. “In addition to its National Guard, a State may, as provided by its laws, organize and maintain defense forces. A defense force established under this subsection may not be called, ordered, or drafted into the armed forces.”
Today, 25 states have State Defense Forces in some form. In California, it’s the California State Military Reserve. In New York, it’s the New York Guard. As currently constituted, these are tiny units of fewer than 1,000, but it’s time for Governor Newsome and Governor Hochul to rapidly expand these forces. Illinois statute authorizes a State Guard, but it’s currently inactive. Governor Pritzker should immediately get about turning this into a viable military force under state control.
If all of this sounds like a prequel to the film Civil War, blame Donald Trump and his compliant Republican Party, declaring war on half the country. Pretending this isn’t happening is the path England took while Germany rearmed. Weakness is the proven expedient to empower a threat; strength is the greatest deterrent.
How would these state forces be employed under a Trump Insurrection Act scenario? That’s a valid question, but the discussion will only take place if there are credible State Defense Forces. NATO never used the Pershing missiles deployed under President Reagan, but their existence helped keep the peace and contributed to the collapse of the Soviet Union.
The states have the power to defend their citizens. It’s time for governors to use it.

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