pjmedia.com In a rambling and fact-challenged press conference on Tuesday, former House Speaker Nancy Pelosi trotted out a long-discredited narrative that President Trump failed to deploy the National Guard on January 6 because he simply didn’t want to—while at the same time bizarrely accusing him of violating the Constitution by sending in the Guard elsewhere without gubernatorial permission.
Pelosi claimed, “The president has said he couldn’t, he can’t send in the Guard without the governor’s… permission.” She continued, “Section 12046 of Article X says that the… National Guard cannot be called up by the president without the consent of the governor.”
There is a major problem with this assertion and not just that there is no “Article 10” of the Constitution. Clearly she was confused because what she actually meant to refer to is 10 U.S. Code § 12406.
Be that as it may, under 10 U.S. Code § 12406, the president absolutely does have the authority to federalize the National Guard without a governor’s approval in cases of insurrection, domestic violence, or unlawful obstruction of federal law. The statute explicitly states that the president may call the Guard into federal service and that orders “shall be issued through the governors,” which is an administrative process, and not a requirement of consent. Federal law has long acknowledged the president’s right to federalize the National Guard, and the Supreme Court has affirmed the president’s right to federalize the National Guard without gubernatorial consent multiple times.
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