Podcast Summary: Talking Feds – The Phrase That Could End Trump's National Guard Power Grab

Host: Harry Litman
Guest: Marty Lederman, Georgetown Law Professor and former DOJ Official
Date: November 13, 2025

Episode Overview

This episode dives into the Supreme Court case "Trump vs. Illinois," focusing on the administration's emergency move to federalize state National Guard units in cities like Chicago—and the statutory phrase that could determine whether Trump can wield such emergency powers. Host Harry Litman speaks with constitutional law expert Marty Lederman, whose amicus brief has shaped the trajectory of the case. The discussion centers on the historical and legal meaning of "the regular forces," statutory interpretation, and the broader implications for executive power and military involvement in domestic law enforcement.

Key Discussion Points & Insights

1. The Legal and Historical Backdrop

• Trump has called state National Guard units into federal service in Chicago, Portland, and other cities, aiming to enforce federal law where states allegedly failed.
• Typically, such moves have relied on the Insurrection Act, used famously in 1957 (Little Rock) and 1963 (Alabama), usually against governors resisting federal mandates.
• In history, most requests for federal military intervention came from state officials; use of the National Guard alone, especially from out-of-state (like Texas in Illinois), is highly irregular (06:43).

2. The Statutory Challenge: Unpacking the “Regular Forces”

• Instead of invoking the Insurrection Act, Trump's administration relied on a little-known provision from 1903 (the Dick Act), never before used to call out the National Guard in these circumstances.
• The statute offers three triggers: invasion, rebellion, and when the "United States is unable but through use of the regular forces" to keep order (09:08).
• Lederman discovered that litigants and judges neglected to interpret the meaning of "the regular forces," focusing instead on amorphous standards like "significant impediment" to law enforcement (13:10).

3. Lederman’s Discovery & Amicus Brief

• Lederman, despite his deep legal background, admits he was unfamiliar with this provision until June 2025 (14:03). He emphasizes the importance of statutory language, urging lawyers to look at what Congress intended in 1903–08.
• His research reveals that "the regular forces" meant the full-time standing U.S. Army, as contrasted with the part-time state National Guard or militias—a meaning consistently held in legal, legislative, and military documents (19:42).
• The Supreme Court, prompted by Lederman’s brief, exceptionally invited all parties to submit supplemental briefs on the meaning of this precise statutory language (16:33, 17:44).

4. The Stakes at the Supreme Court

• If the Court accepts that "regular forces" means the Army, then Trump must show he couldn't use the Army before turning to the National Guard; he made no such attempt, undermining his legal basis (22:00).
• The Department of Justice, in its counterargument, concedes the traditional definition but urges that such an interpretation "makes no sense" in the current context (23:07). Lederman counters that there are plausible reasons Congress might have intended this order of operations—local/state first, then Army, then Guard—even if modern circumstances have changed (23:37).

5. Possible Outcomes and Implications

• The Supreme Court could:
  • Grant the government's stay, allowing continued Guard deployment in Chicago,
  • Dismiss the case as moot if federal operations wind down,
  • Rule that the President must first attempt to use the Army, which might force the administration toward the politically (and historically) fraught Insurrection Act (28:57).
• Lederman notes that the legal path for presidential power grabs might ultimately run into practical and political resistance, both from courts and from within the executive branch itself (34:13).

6. Broader Reflections on Law, History, and the Military

• The tension between historical fears of standing armies and today’s highly militarized law enforcement features as a theme. Lederman points out that civil-military boundaries are almost “upside down” compared to what the Founders worried about (34:57).
• The importance of statutory language, as well as the unpredictability of crisis-driven executive actions, underscores the stakes of the case.

Notable Quotes & Memorable Moments

• On the rarity of this statutory invocation:
  “My research shows that the only times… in which the Guard has been called out for purposes of trying to help enforce Federal law [after the 18th century] were… in 1963 involving George Wallace in Alabama… But with that exception, it is very unusual for the president to use the National Guard and not… the regular forces.”
  — Marty Lederman (05:04)

• On the confusion over statutory meaning:
  “All the parties and all the judges… have become so deeply invested in the questions… that it appeared to me that no one was doing what I hope my students will do… first look at the statute.”
  — Marty Lederman (14:05)

• On the brief’s impact:
  “They literally here were so tied in knots and the only place that where the knots were tied were in that sole amicus brief… it’s kind of beautiful that even in this court… if the one has… compelling reasoning, it’s what counts in a court.”
  — Harry Litman (16:33)

• On Government deferring to textual meaning:
  “The Solicitor General… does not even try to suggest that anyone ever used this term to mean anything other than the army and the other standing forces.”
  — Marty Lederman (22:00)

• On American traditions and evolving enforcement:
  “The uniformed regular army is hardly the only game in town with military-style capabilities and weapons. We live in a world in which… federal and local and state law enforcement officials are armed and masked and have military grade weapons…”
  — Marty Lederman (34:16)

Timestamps for Key Segments

• Background on the National Guard & Insurrection Act: 02:28–07:06
• Statutory language and Lederman’s research: 13:10–19:20
• Supreme Court inviting supplemental briefs: 16:33–17:44
• Explanation of "regular forces" and order of military escalation: 19:42–23:37
• Possible court outcomes and broader implications: 28:33–34:13
• Historical reflection on law enforcement militarization: 34:13–35:40

Final Thoughts

The episode delivers a meticulous exploration of how a single statutory phrase, long ignored, might set hard limits on presidential emergency powers—and how careful reading and historical context remain crucial tools in preventing overreach. Both Lederman and Litman stress the fragility and importance of these boundaries, while sharing cautious optimism that the judiciary may yet perform its checking function amid political storms.

Bonus: Marty Lederman’s Music Recommendations (38:54–41:26)

• Snow Caps (Katie Crutchfield’s new project)
• Waxahatchee’s recent albums (“Tiger’s Blood,” “St. Cloud”)
• The Beths (“The Straight Line is a Lie”)
• Wednesday (North Carolina indie band)

This summary captures the legal, constitutional, and practical dimensions of an episode where statutory language meets present-day crisis—making clear why a little-known phrase could have outsized impact on the balance of American power.