Tanks on Mainstreet: The Constitutional Questions of the National Guard with Professor Christopher Mirasola

Christopher Mirasola is an Assistant Professor of Law at the University of Houston Law Center, where he teaches and writes on national security law, constitutional law, and the legal dimensions of military deployments. A graduate of Johns Hopkins University, Harvard Law School, and the Harvard Kennedy School, he previously served as a Climenko Fellow and Lecturer on Law at Harvard and as an attorney-advisor in the Department of Defense Office of General Counsel, advising senior leadership on issues ranging from the National Guard’s domestic role to the U.S. withdrawal from Afghanistan. His scholarship, published in leading law reviews and national security journals and featured on outlets such as Lawfare, examines the fragility of constitutional norms, the statutory ambiguities surrounding domestic military force, and the risks of executive overreach in times of crisis. In this interview with the Harvard Undergraduate Law Review, Professor Mirasola reflects on the growing normalization of National Guard deployments within U.S. cities, the constitutional dangers posed by expansive theories of presidential power, and the urgent need for modernized statutory and normative safeguards to preserve civilian supremacy while allowing for executive flexibility in true emergencies.

This interview was conducted in the Fall of 2025. It has been edited for brevity and clarity.

HULR: We're here with Professor Christopher Mirasola. We will be talking about the deployment of the National Guard into American cities. Professor Mirasola, glad to be with you today.

HULR: My first question to you is, why do you think these debates over the deployment of the National Guard have become such a recurring flashpoint, especially in constitutional law?

CM: Oh, fantastic. That's right. So I think that there is a normative sense that the federal military should not be the first military force that is used when the government thinks it's appropriate to use any kind of force to respond to some kind of domestic situation. But there's often still some kind of desire for a military solution, whether that impulse is good or bad is a separate kind of a question. But the impulse is still there, which leads people to the National Guard, which is a gigantic organization. Every state and territory has its own National Guard. The total personnel of the National Guard makes it one of the largest branches of the military in the United States. So it's this kind of huge reserve of logistical and personnel power that's kind of just always there. And so I think it feels relatively easy to dip into for whatever your domestic purpose might be. And so I think this is the primary reason why the National Guard ends up being at the center of so many of these conversations.

HULR: To what extent do you think this debate reflects sort of the law and that environment instead of something political or maybe even cultural?

CM: So I think the two are intertwined in ways that are complicated and kind of hard to disentangle. I think particularly now when we're talking about deployments of the National Guard, you cannot escape the politics. I think that it seems quite clear that there's a political desire to have a military show of force in particular parts of the country. This is quite explicit in what the president has been talking about. There's an explicit desire to have military force in cities that are run by Democratic Party officials. And so you can't disentangle that from the debates that we're having. And at the same time, the mechanisms that you use to effectuate that military deployment are highly technical and clothed in all manner of constitutional and statutory law and what becomes particularly challenging about this conversation is that you need to be having that political conversation and legal conversation all at the same time to really make sense of what's happening.

HULR: I wanted to talk about your article “Sovereignty, Article II, and the Military During Domestic Unrest.” You critique claims of inherent presidential power to use troops domestically. So how do you think you see these doctrines being tested today, especially in contexts like immigration enforcement or public protest?

CM: First of all, I think it's fantastic that I never imagined that anyone outside of academia would be reading these articles. And so the fact that you have read that article is incredibly impressive. So good job, first of all. All right. But moving on to the substance. That article talks about two implied theories of presidential power. One is called the protective power, which is this idea that the president has an inherent authority based in the Constitution to use the military to protect federal functions, persons, and property. The other authority that I talk about is, again, a theory of implied presidential power called the emergency authority, and it deals with that kind of different factual circumstances. But that first theory, the protective power, we are seeing being used right now. So it was the legal basis for the National Guard deployment in L.A., for example. It's the legal basis for the National Guard from outside of DC that's been deployed to DC. And I would not be surprised if it is again the legal basis for the prospective use of the National Guard in Memphis. It is an incredibly broad theory of presidential power that has been kind of articulated in different ways over time, which makes it really susceptible to abuse. I think that's one of the reasons why we keep on seeing it come up in these deployments. Because it's just really easy to fudge the legal analysis for bringing these National Guard troops to all manner of different cities.

HULR: How do you see these legal interpretations and executive orders influence the scope of presidential authority and domestic military deployments? Do you think these documents serve as genuine constraints on executive power, or are they simply just to legitimize actions that are already made?

CM: So I think at the time, that these opinions are rendered and you have opinions concerning the protective power that go all the way back, you know, basically to the mid 18 to around 1850. They're often, particularly in more modern forms, they're often trying to do both in a very kind of lawyerly way, right? Making what is, in fact, an extraordinary claim: that simply because the Constitution says the president “shall faithfully execute the laws,” those words inherently authorize the use of military force to protect federal persons, property, and functions. I mean, that is quite an extraordinary claim, isn’t it? Without doing much of the usual work we would do to kind of try to interpret a provision of the Constitution. So they're making that move at the same time as they're trying to say, well, this is an authority that should be used as a last resort. You see that in some of the memos, for example. They get very fact specific, so a lot of these are in the context of protests that are going to be disrupting federal government functions in some kind of way, things of that nature. And so you see attempts at doing both, right, in these memos. And when you translate that, into our current context, you see that the attempts at restraint just entirely melt away, and all you have left is the raw expression of executive power. You see this in the briefs that have been submitted by the Justice Department in LA, for example. They make no bones about the breadth of their claim, that this is inherent authority of the president. But they admit no limitations on when the power can be invoked. And that, I think, is pretty predictable. You know, when the rubber meets the road, a lot of those internal restraints really wilt in the face of executive political pressure. And, it's what we see in this area of law. It's what we see in lots of different areas of national security law in particular.

HULR: Right, you see these concepts repeated a lot in these events. So in your Lawfare discussion about deploying the military at the southern border in 2024, “Deploying the Military at the Southern Border,” you described this sort of hybrid status that these National Guard troops have. How do you see this blur of the line between federal and state authority? What constitutional risks might arise if this model is expanded into, say, urban policing?

CM: Fantastic. So the provision of law that you're talking about Section 502F of Title 32: it began its life as a way to bring the National Guard so that they could do training. And it was only over time that the statute was broadened to potentially include other kinds of non-trading tasks. And then, again, that really broad language was used, starting in the Bush administration, really, to authorize a huge range of operational duties. A lot of this began primarily right after September 11th, 2001, and it was used to bring National Guard personnel onto orders to do security tasks at airports. And then, as you mentioned, right across a number of administrations now at the southern border. There's been recently more focus on whether there are restraints we can imply into the statute folks have been talking about again taking that historical perspective to assert that this shouldn't be used for operational deployments. There have also been arguments that because they're in this hybrid duty status right where they remain members of their state militias, that if the governor of the state where they're going to be deployed rejects their deployment, that it would be a violation of that state's sovereignty, right? For the National Guard to be deployed there. And these are all arguments that I think are plausible to different degrees, but have never been tested in court, right? And the core issue that they're going to run up against is the fact that we now have a couple of decades of practice of the executive branch deploying these National Guard troops in this hybrid duty status, to a wide variety of states without ever asking if that state's governor has any interest in them being there, and so in a very real practical way, these ambiguities that have existed at the southern border for a long time have already imported themselves into the heartland of the United States. And I think we're only going to see more of that as time goes on.

HULR: How do you see statutes like the Insurrection Act that are often cited as the statutory backstop for domestic employment? Do you think it still meaningfully represents limits on presidential authority? Or does its broad language basically clear it as a blank check?

CM: Yeah, that's such a great question. So I think there's two ways of approaching the question. So I think if you compare the Insurrection Act with, for example, implied theories of presidential authority like the productive power or the emergency authority, you know, from my perspective, the Insurrection Act is a huge improvement, because it provides some kind of statutory framework, some language, it tells you what context this authority can be invoked in. It requires that there be public notice before deployment is done, and these things can seem, I think, pretty minimal. And in some ways, they kind of are. But at the same time, it's something, which is more than we have with these theories of implied authority. No one has to be told that the president is going to be using the protective power to deploy the military into any given situation and we only know that because they decide to issue a press release or something to that effect. And so I think the minimal amount of transparency that the provisions of the Insurrection Act provide is itself meaningful. With that said, right, there are other perspectives, like the statutes are incredibly old and the language that they use is really broad. So like they absolutely can be abused. Right. It is interesting that we haven't seen them abused yet. I mean, like this president is not shy about using old statutes in really aggressive ways. Like the Alien Enemy Act is a really broad, really old statute that hasn't been used in a very long time. And so it is interesting that the provisions of the Insurrection Act have not been used yet. And I think that might speak to the fact that it provides some amount of a factual showing that needs to be made, which may be having some kind of deterrent effect.

HULR: Speaking of all these legal theories that pose a challenge, a serious challenge, which legal theory do you find most concerning for the constitutional balance and which do you see as least possible under the existing doctrine?

CM: Oh, man. And so here, are you speaking just in the context of domestic military deployments or are we thinking a little bit more broad?

HULR: Focusing on military deployment, what do you see?

CM: Okay. All right. So just domestic military deployments. It's so hard to choose. There's so many parts of this area of law that are pretty deeply broken. So I think what I would say is this. We've seen suggested in the litigation in Los Angeles that provisions of the Posse Comitatus Act (PCA), right, which is the statute that criminalizes using the military for domestic law enforcement purposes, right, that basically the Supreme Court's decision in Trump v. United States (2024) and that was a decision that asserted that the president has pretty broad immunity from criminal prosecution. That decision means that the president cannot be prosecuted for violations of the Posse Comitatus Act, and therefore the PCA would not apply to deployment decisions made that would contravene the PCA. They hinted at this in their litigation. And it was never, it hasn't been squarely addressed by the Court because it's kind of tangential to the litigation. But I see that theory as probably the most dangerous in this area. And I've written another piece that will be published soon that talks about that danger particularly. The Trump v. United States decision left a lot of things ambiguous, which is not helpful when we're thinking about domestic military deployments particularly. We have lots of questions about whether this immunity trickles down to lower officials who are implementing a presidential act. I think that it should not be read that way, but there are plausible arguments for why it should be read that way. It adds a level, again, of ambiguity that is really destabilizing when we're talking about a military deployment that can lead to really combustible situations really quickly.

HULR: To what extent do you see the use of the Guard in these immigration and law enforcement contexts? How do you see that risking normalizing military involvement in civilian enforcement more broadly?

CM: Yeah. So I absolutely think here that one of the most important restraints on presidents using the military for domestic law enforcement purposes historically has been less about the law and more about norms. More about what we think is proper, for the military's role to be in the United States, This is deeply informed by not only the founding, but much more proximate kind of politics, the Vietnam era, The civil rights era, Kent State, things like that. A common set of understandings had developed, I think, especially since World War II, really trying to rein in these domestic deployments of the military. And I see one of the main kinds of issues, dangers with these current National Guard deployments as trying to shift what that public perception looks like, because now we have news about a potential National Guard deployment to Memphis. It takes up part of one news cycle for one day and then it's off the headlines. And there are lots of competing things for those headlines, but I think it also speaks to the fact that people are kind of getting used to it perhaps. That I think is incredibly dangerous because if we think that the military has a role to play in day-to-day governance, that's just anathema to the idea that we have a civilian democratic regime. And so, I think that this is one of the key dangers of this rising tide of continued military deployment.

HULR: Analyzing how courts have often deferred to the executive in national security disputes, how likely do you think it is that federal courts would intervene to constrain a contested guard deployment into cities? Do you see doctrines like federalism or anti-commandeering as viable judicial checks?

CM: Yeah, I am perhaps because of my experience in national security law more generally, a bit skeptical about how much we should expect the courts to be the main vector of constraining the executive branch here. There are, I think, a number of plausible arguments about why the courts should state that the law doesn't authorize the president to take any number of actions, so I absolutely think that a court would be well within its rights to say that the productive power has no basis in the Constitution, for example. Do I think that the courts will in fact do it? I don't know. I'm increasingly skeptical because I think we're seeing an increasing pattern of particularly the Supreme Court not being particularly interested in constraining the president. And a lot of this has been done through kind of interlocutory appeals and kind of provisional measures. And there's not a lot of finality in what the Supreme Court has done yet. I think the answer is still a little bit up in the air. But generally, national security law is an area where the judiciary has deferred to the president's factual and legal determinations. And so often it has been Congress more than anything else that has served to constrain the president, whether that be through appropriations or through oversight or through things of that nature. Unfortunately, what we're seeing right now is a Congress that's not particularly interested in any of those means of constraint.

HULR: Speaking in a broader sense, for my final question, based on your recent scholarship and what we know about the law, what do you think or what are reforms that either statutory, judicial, or normative would you recommend to better delineate the limits of the National Guard's domestic role while still serving as an executive flexibility in true emergencies?

CM: Right, because this is the challenge, It's not true that there are no circumstances in which the National Guard should or needs to be used within the United States. Absolutely not, the key, as you say, is figuring out when that is. I think a lot of the issue that we have right now is that the law is old, and it contains lots of loopholes. And so I think if I could rewrite things from first principles what we would have is a baseline proposition similar to what we currently have in the Posse Comitatus Act but it wouldn't just be a criminal statute because of more complicated reasons that sets as a baseline that the military may not be used for domestic law enforcement purposes and that prohibition would apply to the federal military and it will apply to the National Guard, even if they're operating in a hybrid duty status, because they're doing so at the behest of the federal government. And what matters is the federal government deciding to use the military, irrespective of what hat they have on while they're doing it. And then you would provide mechanisms for using the military in specifically designed scenarios that are modern and up to date. So there are other provisions of Title 18 and Title 10 that authorize using the military to assist in investigations regarding weapons of mass destruction. I get that, there are other provisions that have to do with allowing the military to assist DOJ with conducting arrests when there is an imminent and ongoing nuclear attack. Again, I get that, these situations make a lot of sense. And what I would look for is a regime that is as specific as that. And in providing a process for the military to be used. And there are lots of examples out there comparatively, if you wanted to look at this in other contexts. For example, in Canada, its regime for emergency authorities is much more coherent and well-developed than that which exists in the United States. And so again, I think it is impossible to design a system that would be entirely immune from abuse. That is just, I think, not something that's practical. But there is absolutely a lot between, you know, trying for perfection and what we currently have that I think would meaningfully restrain the president, even one who is really interested in using the National Guard in the United States.

HULR: Thank you so much for your insight. I want to thank you again for granting us this interview. It's with the help of legal scholars like yourself that we maintain our publication as a place of legal learning and discourse. So thank you again so much for that, Professor.

CM: Of course. Happy to do it. This was fantastic. And kudos to you for doing the project. You've done a very good job so far. Thank you.