Fact check: Can the President unilaterally deploy the National Guard under the Insurrection Act, or is congressional approval required?

1. How the statutes line up—and why the difference matters for presidential prerogative

Two separate federal authorities are central to the dispute: 10 U.S.C. § 12406 and the Insurrection Act. The former expressly allows the President to call members of the National Guard into federal service under specified conditions and includes language about issuing orders “through the governors,” creating ambiguity about whether governors have substantive veto power or a merely ministerial role ^[1]. The Insurrection Act is historically broader for domestic use of federal troops and contains its own prerequisites; when invoked, it has allowed presidents to bypass state objections in extraordinary circumstances. The distinction matters because statutes govern different triggers and procedural steps, and therefore shape how unilateral the President’s actions can be in practice ^[1].

2. The governor’s role: gatekeeper or channel?

The statutory text and scholarly readings diverge on whether a governor must actively consent. The statute’s requirement that orders be issued “through the governors” has been read as either imposing a necessary state role—effectively a check on federalization—or as a ministerial routing requirement in which governors do not have meaningful discretion to block federal action. Commentators note historical practice has been mixed, and instances such as President Eisenhower’s use of federal troops to enforce school integration suggest courts and executives have sometimes overridden state resistance when national authority was asserted ^[1]. This contradiction is a core legal flashpoint because it determines whether governors can reliably limit presidential deployments.

3. Historical practice and judicial reluctance to intrude

Historical examples inform both sides. Past federal interventions under similar statutes have occurred in moments the executive deemed necessary to suppress rebellion or enforce federal law, and courts have often shown reluctance to second-guess the executive’s factual determinations about whether conditions justify federalization. The sparse litigation history and judicial deference contribute to uncertainty about judicial remedies if a governor objects—raising the prospect that disputes would be decided politically rather than judicially ^[1]. Legal scholars emphasize that because courts have hesitated to wade into assessments of rebellion or insurrection, the practical limits on presidential action may depend more on political checks than on immediate judicial review ^[1].

4. Recent deployments and political alarm—what changed in 2025

High-profile deployments in 2025, including National Guard missions to Memphis, have intensified scrutiny of executive authority and prompted bipartisan political responses. Critics argue that the pattern of using federal Guard deployments for domestic policing raises civil liberties concerns and risks normalizing military presence in American cities ^{[3] [4]}. Supporters frame such actions as lawful uses of existing authorities to restore order. The political reaction has included legislative proposals aimed squarely at narrowing executive discretion—illustrating that contemporary practice, not just statutory text, is driving demands for reform ^[2].

5. Lawmakers push back: the ‘Defend the Guard’ effort and its implications

Legislative initiatives like the “Defend the Guard” bill seek to require congressional approval before federal deployment of National Guard forces, directly contesting the executive’s current interpretation of statutory powers. Sponsors argue this is necessary to clarify limits on federal power and protect state prerogatives; proponents frame it as a guardrail against misuse of the Guard for domestic political ends ^[2]. Opponents counter that requiring congressional sign-off could impede rapid responses to emergent threats. The bill’s existence highlights a political consensus fracture: whether the remedy for statutory ambiguity should be legislative clarification or continued reliance on executive and judicial restraint ^{[2] [4]}.

6. Where the legal uncertainty leaves governors, the White House, and courts today

Because the statutes can be read differently and because judicial review has been limited, state executives face unpredictable leverage: in some scenarios governors may effectively delay federal assumption of Guard troops; in others, the President may federalize forces despite objections. The resulting strategic ambiguity pressures all actors—governors must decide whether to litigate or negotiate, the President must weigh political costs, and Congress may be driven to act to reduce uncertainty. The status quo places considerable weight on political remedies rather than clear legal constraints ^{[1] [2]}.

7. Bottom line and unanswered legal questions demanding clarity

The President can, under current statutory frameworks, federalize or deploy the National Guard without contemporaneous explicit congressional approval, but the extent of unilateral authority depends on which statute is invoked, the reading of procedural language about governors, and the political context. Recent deployments and legislative pushback show that the practical legal boundaries are contested and unresolved; resolving them will require either definitive judicial rulings or legislative reform to specify whether congressional approval is required in particular circumstances ^{[1] [2] [3]}.