Extremist Militias on Federal Duty

Dakota S. Rudesill is associate professor at the Moritz College of Law, and national security simulation director and research associate at the Mershon Center for International Security at The Ohio State University.

“Unorganized militia” is a statutory term that even most national security experts have never heard. Yet, in an instant it could go from a cobwebbed corner of the U.S. Code to a claimed legal basis for executive-commanded partisan violence. Unlike the self-organized violent extremists who attempted to overturn a free and fair election at the U.S. Capitol on January 6, 2021, attempted federal mobilization of unorganized militia could make a future January 6–like militia assault better organized, presidentially approved, and allegedly legal.

This essay frames the constitutional and statutory meaning of “militia,” and explains the legal theory under which a president could attempt to exploit an outdated statutory term to put modern-day extremist militias on official duty to conduct political violence. The danger is real. The legal theory, however, should be rejected. Importantly, Congress can easily eliminate any potential plausibility of mobilization of the unorganized militia by simply replacing the term “militia” in the Insurrection Act with “National Guard.”

The Militia: Constitutional Origins and Professionalization as National Guard

At the founding of this nation, the term “militia” meant the able-bodied male citizenry of military age that was available to deal with civil disorder and, in the worst instance, foreign invasion. The Constitution of the United States, in article 1, section 8, clause 15 and clause 16, gave Congress the ability to exercise nearly complete control over the militia. As a default, state militias continued to be available for state duty, but Congress, at its discretion, could provide authority to the president, as the “Commander in Chief of the Army and Navy . . . and of the Militia of the several States, when called into the actual Service of the United States,” to call forth to the militia “to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

During the founding era and the century-plus that followed, Congress enacted a series of such militia laws. These have evolved into a collection of U.S. Code provisions that includes the Insurrection Act, which allows mobilization of both militia and regular federal forces to deal with rebellions against either state or federal law.

To craft a better-equipped, more effective, and foreign-deployable professionalized version of the militia, in the late 1800s and early 1900s, Congress used its constitutional authority to craft the modern incarnation of the militia, the National Guard. The Guard would, when federalized, more seamlessly operate as an auxiliary to standing federal military forces, while also being more capable than a citizen militia on state duty. The complete transformation of the everyman militia to the National Guard was accomplished through a series of laws over several decades, starting in earnest with the Dick Act of 1903, named for its authoring Ohio senator and National Guard general. These statutes provided in detail for equipping, training, and organizing the Guard, and they launched a project of interoperability with the regular armed forces that continues today in every annual National Defense Authorization Act.

Importantly, Congress created new militia classifications that endure today. The professionalized National Guard was designated “the organized militia,” while the balance of men of military age were classified as the unorganized militia. Congress accordingly modernized other laws, removing the word “militia” and replacing it with “National Guard.” Meanwhile, in the century-plus since the reforms of the early 1900s, in public conversation the term “militia” has come to mean self-organized violent extremist groups.

A Theory Based on One Word

In one law, there was one term, however, that Congress neglected to modernize. The Insurrection Act was never updated and retains the founding era word “militia.” Under the act, the Guard has been federalized multiple times, most notably (alongside several regular U.S. Army units) to facilitate integration of schools in the South during the Civil Rights Era in accordance with federal court orders that segregationist state authorities were defying. The problem is that in the Insurrection Act the term “militia” could conceivably still reach not just the National Guard as organized militia, but also the unorganized militia. The U.S. Supreme Court noted this hypothetical: in a passing footnote 35 years ago, the Court observed that it was “possible that [unorganized militia] are subject to call” to federal duty under the Insurrection Act. The Court made clear, however, that it regarded this legal question as unanswered.

There’s other ambiguous language in the Insurrection Act. The plain text of the Insurrection Act seemingly allows presidential deployment of “the militia or the armed forces” against “any . . . domestic violence, unlawful combination, or conspiracy, if it . . . opposes or obstructs the execution of the laws of the United States.” Although scholars and government lawyers have made strong arguments against expansive interpretation of the Insurrection Act, it is well established that the act operates as an exception to the Posse Comitatus Act’s ban on law enforcement by federal armed forces.

How real are the dangers? On and before January 6, Stewart Rhodes, founder of the extremist group Oath Keepers, called on President Trump to invoke the Insurrection Act to put Rhodes’ militia and associated groups on federal duty as unorganized militia. These militants led the attack on the U.S. Capitol in the first violent occupation since the War of 1812. The nation should be grateful that Trump did not act on Rhodes’s request. This would have given a patina of alleged legality to a lawless assault. It also would have set a dangerous precedent for federalizing unorganized militia, especially now that Trump, in his second term as president, has pardoned or commuted the sentences of all the January 6 attackers—1,270 of whom were convicted of offenses including sedition and trespassing.

The Wrong Reading of the Law

The Rhodes theory of the Insurrection Act has a simple textual logic. But it is not the correct reading of the law. If a future president were to seek to federalize violent militias, government lawyers need to caution against it and courts ought to reject this theory, for several reasons.

First, Congress, in redesigning the militia into the smaller professionalized National Guard a century ago, designated the balance of military-age men as unorganized militia. The obvious meaning is that they are not organized—not available for calling forth. A presidential federalization order would be an attempt to organize additional militia by executive fiat. That would defy not just the Dick Act but more than a century of statutes through which Congress comprehensively remade the militia and designated the National Guard as the single federally deployable militia force. In the process, the president would also be defying the Constitution. Congress has plenary organizational power here. In contrast to the National Guard, the unorganized militia is not covered by a thick and longstanding body of congressional statutes for “organizing, arming, and disciplining” that force for duty. Nor have the states done their limited but necessary work regarding the militia under the U.S. Constitution—appointing officers and providing training—when it comes to militants such as the Oath Keepers.

In Supreme Court separation of powers doctrine, the term “constitutional gloss” (or “historical gloss”) refers to interpreting the Constitution in light of longstanding interbranch practice that has been operating for decades or centuries. Every invocation of the Insurrection Act since the Dick Act has respected Congress’s redesign of the militia into the National Guard. The unorganized militia has never once been federalized. The Defense Department, previously the War Department, is well known for extensive planning, and yet the author’s research has uncovered no Pentagon plans for employing unorganized militia. It is simply not an option.

The U.S. Code’s “General Policy” on military deployments also makes clear that the National Guard is the only deployable federal militia force. It specifies: “Whenever Congress determines that more units and organizations are needed for the national security” than the regular military, then the National Guard and “such units of other Reserve components as are necessary for a balanced force, shall be ordered to active Federal Duty.” Congress is saying here in law that it reserves for itself decisions about how to supplement the regular military. The law stipulates that the next step is deploying the National Guard and then the Reserve components of the military services (e.g., the Army Reserve, Air Force Reserve, etc.). This policy statute makes no mention of unorganized militia. Nor is there any in the statutory definition of “armed forces,” which includes only professional forces subject to Congress’s laws as regards their organization, arms, discipline, training, operations, and funding.

And for good reason: what insurrection, domestic violence, unlawful assemblage, or conspiracy could be so great that it completely overwhelms the entire active-duty military, the entire National Guard of all the states, the military Reserves, state law enforcement, and local law enforcement? The theory that the Insurrection Act would allow federalization of extremists as unorganized militia is, ultimately, wrong. And it risks normalizing partisan violence by militias that, in the United States and worldwide, have reputations for extremism, atrocities, lack of discipline, and assaulting legislative bodies and other institutions of democracies.

To foreclose any plausibility to a claim that partisan militias could be put on official duty, Congress can and should do something quick, simple, and well-precedented: delete the outmoded term “militia” in the Insurrection Act and insert instead “National Guard.”

About the Commentary Series

In February 2024, the Center for a New American Security (CNAS) launched a project on federalism and national security. This portfolio has taken shape under the CNAS Securing U.S. Democracy Initiative. Recognizing that the 21st-century United States increasingly relies on its system of federalism to rebalance the centers of power and authority across a range of public policy issues, the Securing Democracy Initiative has developed a body of work focused on states’ authorities, roles, and responsibilities that relate to national security functions. Increasing reliance on the U.S. federalist system of government presents both challenges and opportunities for strengthening national security. This commentary series and the December 2024 report Stress Testing State Power: When Governors and Presidents Diverge on Matters of National Security are components of this research effort.

Each commentary in this series explores a current trend or dynamic in modern uses and authorities of the National Guard. Expert authors explore how the Guard is currently being used and will be increasingly called upon in years ahead. Authors provide recommendations for modernizing and clarifying legal authorities for National Guard deployment, and for legislative action at the state and federal levels.

The CNAS project on federalism and national security is made possible with the generous support of the Democracy Innovation Fund, Defending Democracy Together Institute. As a research and policy institution committed to the highest standards of organizational, intellectual, and personal integrity, CNAS maintains strict intellectual independence and sole editorial direction and control over its ideas, projects, publications, events, and other research activities. CNAS does not take institutional positions on policy issues, and the content of CNAS publications reflects the views of their authors alone. In keeping with its mission and values, CNAS does not engage in lobbying activity and complies fully with all applicable federal, state, and local laws. CNAS will not engage in any representational activities or advocacy on behalf of any entities or interests and, to the extent that the Center accepts funding from non-U.S. sources, its activities will be limited to bona fide scholastic, academic, and research-related activities, consistent with applicable federal law. The Center publicly acknowledges on its website annually all donors who contribute.