Thomas Lee Clarifies Presidential Use of Federal Law Sections

In a recent FactCheck.org analysis, Fordham Law Professor Thomas Lee provided clarification on the legal mechanisms U.S. presidents have utilized to deploy military forces domestically, illuminating the ongoing debate about federal authority over the National Guard.

The analysis, authored by Saranac Hale Spencer and D’Angelo Gore, examines the specific federal statutes that govern presidential power to mobilize troops on American soil. Lee, who previously served as special counsel in the U.S. Department of Defense, offered particular insight into the legal distinctions between various deployments in recent history.

The article explores former President Donald Trump’s June 7 memorandum, which referenced Title 10 of the U.S. Code, section 12406. This statute outlines three specific scenarios in which a president can federalize National Guard troops: when states are unable to suppress insurrection, when there is defiance of federal authority, and when the United States faces invasion.

Legal experts note that this particular section of federal law has remained largely dormant for decades. According to research cited by William Banks of Syracuse University College of Law and Mark P. Nevitt of Emory University School of Law, the last deployment under section 12406 occurred in 1970, when President Richard Nixon mobilized the National Guard during a nationwide postal strike that threatened essential government communications.

What makes Lee’s insight particularly valuable is his firsthand knowledge of how these laws were considered during recent civil unrest. “It was discussed,” Lee explained in an interview with FactCheck.org, referring to the potential use of section 12406 during the 2020 protests in Washington, D.C., following George Floyd’s death. However, the Department of Defense ultimately pursued a different legal pathway.

Instead of federalizing troops under Title 10, the administration relied on Title 32 of the U.S. Code, section 502(f). This alternative approach allowed for the deployment of National Guard troops from various states to Washington, D.C., while maintaining their status under state control rather than transferring them to federal authority.

This distinction highlights the nuanced legal framework that governs domestic military deployments. Under Title 32, National Guard troops remain under the command of their respective state governors, even when operating outside their home states, whereas Title 10 federalization places them directly under presidential control through the Department of Defense chain of command.

The legal analysis comes at a time when questions about federal authority over domestic security operations have intensified. Recent years have seen increased deployment of National Guard troops for various purposes, from pandemic response to securing government buildings and responding to civil unrest.

The FactCheck.org article, titled “Q&A on Federalizing the National Guard in Los Angeles,” provides a broader examination of these legal authorities and their historical application. This context is particularly relevant as policymakers and legal scholars continue to debate the appropriate balance between federal and state control over National Guard forces during domestic crises.

These discussions touch on fundamental constitutional principles regarding federalism and the separation of powers, with significant implications for how the government responds to future domestic emergencies. The rarely-used Title 10 authority represents one of the more robust expressions of federal power, while Title 32 deployments reflect a more cooperative federalism approach that maintains state authority.

Lee’s expertise offers valuable context for understanding these complex legal frameworks that most Americans rarely encounter but which become critically important during national emergencies and periods of civil unrest.