The First Citation of the Heritage Guide in a SCOTUS Brief

A very timely citation on the "Calling forth the Militia" Clause

One of the virtues of a project like the Heritage Guide to the Constitution is its utility. The constitutional history in that book will be used in future controversies that were not known when the book was written.

Case in point: the first citation to the guide comes in an amicus brief filed in Donald Trump v. Illinois. The brief cites the essay by Judge Greg Maggs and Professor Rob Leider on the Calling Forth the Militia Clause.

That determination is nonjusticiable because, as this Court held in Martin v. Mott, once Congress has authorized the President to call forth the militia when certain exigencies are present, "the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons." 25 U.S. (12 Wheat.) 19, 30 (1827). Plaintiffs creatively packaged their request for an injunction against the President's determination in nine different boxes, see ECF No. 1, but all invited the district court (and this Court on appeal) to violate Mott by purporting to review and invalidate a decision that Supreme Court precedent has held is assigned to the political branches.

As scholars have recognized, Mott "held that Congress gave the President sole and unreviewable authority to determine when an emergency exists that is sufficient to justify deploying the militia." Judge Gregory E. Maggs & Robert Leider, The Calling Forth the Militia Clause, in THE HERITAGE GUIDE TO THE CONSTITUTION 218, 221 (Josh Blackman & John G. Malcolm eds., 3d ed. 2025). . . .

Under the Constitution, the states fully ceded to Congress their power to "provide for calling forth the Militia to execute the Laws of the Union." U.S. Const art. I, § 8, cl. 15. "The Constitution assigns the power to 'call forth the Militia' to Congress, and Congress has delegated portions of that power to the President." Newsom, 141 F.4th at 1055. It is "the clearest expression of federal power to conscript citizens." Maggs & Leider, supra, at 219 (emphasis added). Anti-Federalists had attempted during the ratification debates to "interject state governments into the process of calling forth the militia by requiring some form of state-level consent," but those efforts failed. Id. at 220.

I hope this is the first of many future citations.

Comments

[y81]

I guess Ilya Somin didn't read this book.

[Sarcastr0]

From ze wiki: “ America First Legal Foundation is an American 501 nonprofit conservative public interest organization founded in 2021 by Stephen Miller.”

[Bob from Ohio]

Guilt by association and ad hominem in one comment. Good work!

[Sarcastr0]

You used to be more of a thinker, if always a shit.

The OP isn't going into the argument of the brief - it's boasting they got cited.

So it's absolutely an on-point objection to note they got cited by an unserious organization, since Blackman somehow left that fact out of his post.

That kind of thing didn't used to slip by you. But one thing I've noticed about the MAGA shitposters is those that were sharp have joined their dumber fellows, or at least gotten lazier in recent years. As though passion were a substitute for thinking.

[Stupid Government Tricks]

You haven't changed at all. Still ignoring the comment about guilt by association and ad hominem because you'd rather double down on bashing Josh.

[Sarcastr0]

Are you always this thick?

My second line disposes that accusation.

[bernard11]

I see no guilt by association or ad hominem. How could there be such, when Sarcastro doesn't attack the argument advanced? He didn't say, "The amicus brief is wrong because Heritage is stupid."

He merely points out that we have a right-wing organization citing to an opinion published by another right-wing organization, with which it appears to have some connections.

That's neither surprising nor boastworthy. I mean, if your mother filed an amicus brief citing one of your articles, would you consider that a major recognition of your scholarship?

[Kazinski]

But you don't go into the arguments of the cited passage, or the brief at all, either, or the cited case Martin v Mott.

Martin v Mott is exactly on point, and it doesn't allow a district court judge to substitute his judgement for the President's.

[Zarniwoop]

shorter OP: “hey look, Stephen Miller and the Heritage Foundation are having a Constitutional circle jerk!”

[Darwinnie]

The Heritage Guide strikes me as an effort to manufacture false histories for citations in originalist arguments. Among other things. That S Millers group cites it leads me to suspect thats whats going on here.

[MollyGodiva]

I would sooner trust a book about being "Be the Life of the Party: The Going Out Guide" by a medieval hermit

[Purple Martin]

Yup, for the author of that tome, would definitely trust the hermit over Stephen Miller.

[Katall]

Of course, now the the Great Leader is president, Prof. B abandons the major questions doctrine.

[Aubrey LaVentana]

In my opinion, the major questions doctrine is a misnomer. Or a red herring.

Rather, it's a Tenth Amendment question. "Does the Constitution enumerate this power to this, or any, branch of government?"

[Krayt]

That is correct, but irrelevant to the major questions doctrine, loosely, does the executive branch, president down to regulator, have the honor of using existing laws in, ummmm, creative and large-scale ways that were transparently not envisioned by Congress?

People have problems with rational basis, and living constitutionalism. This is their big brother, gigantic but seldom seen, like Chuck in the first two episodes of Happy Days.

I'm anti-weasel, which is to say anti power monger seductive speech self-arrogation of power that came neither through an amendment nor even just a pondered speech & debate by our ostensible represent-atives.

I suspect Congress will tighten this stuff up...after he is gone, as they run scared.

[Aubrey LaVentana]

"creative . . large scale ways" as in, protecting Government agents while they carry out their duties?
"not envisioned by Congress" gotta think on that one. I assume this is Reconstruction-era statute. They didn't envision applications so much as witness them.

[Katall]

Posse commitatus is a post reconstruction statute. Amazingly, it envisioned a very similar scenario to that we have today.

[David Nieporent]

No. The major questions doctrine is one of statutory construction; it is not applicable to constitutional questions. It asks whether a particular statute enacted by Congress actually delegated a specific regulatory power to the president.

[Kazinski]

If the question of whether Congress had the authority to delegate the authority to call out the Miltia had never been addressed by the Supreme Court before that might be a valid criticism.

But it was decided bubthe Supreme Court in a decision written by Joseph Story.

Couple that with Marbury v Madison, which clearly states that when Congress comits a decision to the President's discretion, then that decision is the President's alone, and not reviewable by the courts.

[Aubrey LaVentana]

Perhaps now there is incentive for Democrats to seriously examine whether the National Guard is the (i.e. 'only') militia.

[MollyGodiva]

Bullshit. Congress delegated calling out the militia to the president to be used only under certain circumstances. Of course it is judicial for judges to look at the facts and decide if the conditions that Congress put are being followed. It might be valid to give the president a bunch of deference, but not complete. Else you have the situation where the president can call out the militia for any reason they want. That is the exact opposite of what the Constitution says.

[y81]

Obviously this section of the book demonstrating that presidential decisions are nonjusticiable only applies to Republican presidents. I'm not going to waste my time reading a whole book of partisan hackery, but I'm sure there is another section demonstrating that Democratic presidential decisions of all kinds are subject to the most stringent review, which Professor Blackman and his comrades will trot out when the occasion arises.

[MollyGodiva]

The concept of nonjusticiable is offensive to living in a free country.

[MollyGodiva]

Mott was about the president calling the militia out during the British invasion of the War of 1812. It is nuts to say that case is controlling precedent when the president wants to call out the militia because he does not like his lawless goons getting protested.

[wvattorney13]

But Mott dealt with that question directly. Whether you feel that this is not sufficiently like the War of 1812 is irrelevant. That decision is made by the President:

"We are all of opinion that the authority to decide whether the exigency has arisen belongs exclusively to the President, and that his decision is conclusive upon all other persons."---Mott.

[SimonP]

You, like Josh, are just excerpting the language from the argument of which it is a part. The point of this statement is to say that the decision whether an "exigency" exists, meriting a call-up of the militia, belongs to the president, and not to his various subordinates. It has nothing at all to do with whether judges may review the question's own determination as being within or without his own power.

[wvattorney13]

That's a possibility. But if true, it is odd that a judge writing the opinion itself did not go on to opine whether the President or the militiaman had the better of it, if indeed the judiciary could review these questions.

I think it is you all trying to force fit your view into this holding. "Exclusive" "other persons" sounds pretty definitive.

[Purple Martin]

Read the sentence before the one you quoted, then tell me if you can figure out the bounded subset of "all other persons" it specifically refers to.

[Katall]

Just a note... During the Whiskey Rebellion, the president led the troops into battle.

[QuantumBoxCat]

..

[QuantumBoxCat]

In Mott, J. Story writes (emphasis added)

The power thus confided by Congress to the President is doubtless, of a very high and delicate nature. A free people are naturally jealous of the exercise of military power, and the power to call the militia into actual service is certainly felt to be one of no ordinary magnitude. But it is not a power which can be executed without a correspondent responsibility. It is, in its terms, a limited power, confined to cases of actual invasion or of imminent danger of invasion. If it be a limited power, the question arises by whom is the exigency to be judged of and decided? Is the President the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question, upon which every officer to whom the orders of the President are addressed, may decide for himself, and equally open to be contested by every militiaman who shall refuse to obey the orders of the President? We are all of opinion that the authority to decide whether the exigency has arisen belongs exclusively to the President, and that his decision is conclusive upon all other persons."

The rationale central to the Court's ruling is that Mott, a private in the militia, was not free to disobey orders based on his own assessment that the facts of the situation did not constitute an exigency under the statute. Thus the court martial and sentence imposed on Mott for disobeying orders was lawful.

[y81]

I suspect that sort of careful reading and parsing of opinions is not exactly what they teach at South Texas College of Law.

[David Nieporent]

I'm shocked to find that Josh effectively lied about the holding of the case.

[Voize of Reazon]

Unfortunately Justice Story didn't enunciate such a clear, narrow rule. Most of his reasoning is as you say, denouncing the absurdity that every officer and militiaman reporting to the President should be able to second-guess his orders. If he had stuck with that the holding would be clear.

But he also wrote

Whenever a statute gives a discretionary power to any person to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts.

and

The law does not provide for any appeal from the judgment of the President

These can be read as an indication that the judgment in this case was according to a broader rule that prevents any review, not just one by a subordinate.

Over the years Mott has been cited many times to support judicial non-reviewability of executive determinations, including in Luther v. Borden, 48 U.S. 1 (1849), Nishimura Ekiu v. United States, 142 U.S. 651 (1892), United States v. George S. Bush & Co., Inc., 310 U.S. 371 (1940), and most recently in Sotomayor's concurrence in Zivotofsky v. Clinton, 566 U.S. 189 (2012). So, tendentious as Maggs and Leider's reading may be they are hardly the first to make it.

[wvattorney13]

Agreed. It is a blindly narrow reading of the Mott can to say that it ONLY applies to militiamen but not the judiciary. To get there requires qualifications on the holding that simply are not present.

As I alluded to above, if the "real" holding was that militiamen could not make that decision but judges could, you would think that the Court would have went on to decide whether the situation qualified as a exigency and then either acquit the militiaman, because the President's order was void ab initio as being in excess of his lawful powers, or uphold his conviction because it found that the President had properly used his powers.

It did not because the holding was almost certainly that it would not second guess, that the President's view is conclusive.

[SimonP]

I realize that this point is going to be lost on Josh, who aspires merely to be a footnote on some future history of the decline of our republic. But someone (Eugene, maybe? they seem chummy) might at some point take the time to inform this little shit-eating cumstain of a hack that a congressional delegation to the president of authority granted, in the first instance, to Congress, which by its terms is limited, cannot logically be said to be so unreviewable that any putative limits on the delegation are meaningless.

If Congress had said that the president could call up the militia only on Tuesdays, would it similarly be unreviewable if the President declared Friday a "Tuesday"? If he were granted the authority only if Canada invaded, would his decision to call up the militia upon an invasion by Mexico be similarly unreviewable?

Invoking Mott, a case that was ultimately about good military order in a time of war, for the idea that Congress has completely given up any ability to limit the president's power to call up the National Guard for any purpose he chooses, is a kind of intentional distortion one would expect in the Chinese or Russian legal systems. Josh seeks to create a corrupted legal regime where the president is king (and Republican). I lack any better term to describe it than "evil." These people are seeking to destroy what generations of our forefathers fought and died to build.

[windycityattorney]

SG Sauer spent most of the US Sup Ct emergency stay motion in the IL case on this argument; making the same failed reading of MOTT from this book.

President as CiC makes an order; a member of the militia called into federal service has to obey. People not in the militia do not. It's really that simple.

Sauer is given the benefit of the doubt on his reading of Mott as he is working on a very expedited briefing schedule so mistakes can happen - even with him having a large staff to help research, write and draft briefs and arguments. This is sloppy. Blackman is under no exigency to produce something fast. It reminds me of law school and people first learning West key notes or something. They find a key note that says what they want or need from some random case so cite the case as being controlling without reading the actual case the headnote came from. Huge mistake.

A very fair reading of that case is that the holding is binding on one group of people: those under the president's direct chain of command. That is how the federal judges below who rejected this argument read it and its the fairest way to parse the facts.

[Hugh]

Not a good start. Supporting the unitary executive theory, which means, looking through an originalist lens, that the writers of the Constitution wanted to get back to personal rule by the likes of Charles I and George III. And therefore interpreting the Constitution to support the creation of a Trumpian Gestapo. Congratulations!

[NvEric]

The usual obscene and cynical posters continue to soil the dialog and confuse 'exigency'.

This 'exigency' power given can be dangerous and can be questioned. It certainly can be questioned after the fact, but before only through disobeying the order. Soldiers are free to disobey, but will face discipline at some point. But, a court can not question it directly, rather it can to the SCOTUS if allowed.

Constantly opposing policy and the Constitution can be considered rebellion. Frivolous court action is dangerous to the People. An out of control executive has not been reached. The executive is restrained and has been more than patient with these interruptions.

Removing illegal aliens from the country will continue. The rebellion against the Constitution will also be removed as it is an 'exigency' too.

[Katall]

'Constantly opposing policy and the Constitution can be considered rebellion.'

Really?

BTW, what does 'Opposing the constitution' mean?

[wvattorney13]

Some of you guys are hardcore. Josh, at least in this article, isn't pimping his guide or arguing a case. He is just happy that his guide was quoted in a SCOTUS brief. Let the man have his moment to celebrate. You can gut him in the next thread.