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.

[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

[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.

[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.

[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.