Jennifer Elsea
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jnklz.bsky.social
Jennifer Elsea
@jnklz.bsky.social
5.9K followers 290 following 1.3K posts
Legislative attorney at CRS. NatSec, IHL, international law, etc. Army Intelligence officer in previous life. Opinions mine. No skeets from this account are attributable to CRS.
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jnklz.bsky.social
What! No one else says this?
dragon pool
November 21, 2025 at 8:56 PM
jnklz.bsky.social
👀
In fact, one Congressional Research Service report describing those operations noted that "[a]lthough National Guard members did not engage in direct law enforcement activities during these two border security operations, it is possible that states might consider giving them that authority in future operations." Elsea, supra, at 2 (emphasis added). The reliance on state authority is also consistent with the National Guard's own interpretations of Title 32. Nat'1 Guard Bureau, Nat'1 Guard Reg. 500-5, Nat'1 Guard Domestic Law Enforcement Support & Mission Assurance Operations § 4-2(a) (Aug. 18, 2010) ("The National Guard normally serves on state active duty or Title 32 status when providing support during these operations, and is under the command of the state's Governor, in accordance with 31 It is also notable that the National Guard units were not serving in a "direct law enforcement role" by enforcing federal law at the border, but instead assisting with engineering, aviation, entry identification teams, and other forms of logistical and administrative support. Elsea, supra, at 1-2.
November 21, 2025 at 4:05 PM
jnklz.bsky.social
It is unclear how “rebellion” got into RS §1642, since it wasn’t in the 1795 Act. That word first showed up in 1861. But that section was classified only to RS §5298 (now 10 USC §252).
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever, by reason of unlawful obstructions, combinations, or assemblages of persons, or rebellion against the authority of the Government of the United States, it shall become impracticable, in the judgment of the President of the United States, to enforce, by the ordinary course of judicial proceedings, the laws of the United States within any State or Territory of the United States, it shall be lawful for the President of the United States to call forth the militia of any or all the States of the Union, and to employ such parts of the land and naval forces of the United States as he may deem necessary to enforce the faithful execution of the laws of the United States, or to suppress such rebellion in whatever State or Territory thereof the laws of the United States may be forcibly opposed, or the execution thereof forcibly obstructed. VOL. XII. PuB. — 36 Revised Statutes of 1874 table showing disposition of the Act of July 29, 1861 SEc. 5298. Whenever, by reason of unlawful obstructions, combinations, or assemblages of persons, or rebellion against the authority of the Government of the United States, it shall become impracticable, in the judgment of the President, to enforce, by the ordinary course of judicial proceedings, the laws of the United States within any State or territory, it shall be lawful for the President to call forth the militia of any or all the States, and to employ such parts of the land and naval forces of the United states as he may deem necessary to enforce the faithful execution of the laws of the United States, or to suppress such rebellion, in whatever State or Territory thereof the laws of the United States may be forcibly opposed, or the execution thereof forcibly ob-structed.
November 19, 2025 at 1:21 PM
jnklz.bsky.social
Here’s the gov’t argument. “Regular forces” used in other contexts can mean the standing military, but this context is unrelated because “execute the laws” is added. So a phrase within a statute for organizing the militia to be compatible with the regular forces uproots that term from context? 🤔
1. Respondents and their amici show that, in other contexts, "the regular forces" (and cognate terms) can, and often do, refer to the standing military, exhaustively citing various dictionaries, speeches, reports, statutes, legislative history, and judicial decisions. See Supp. Br. 3-7; Lederman Br. 8-17; Lederman Supp. Br. 6-14. But this Court's supplemental-briefing order is "not asking an abstract question about the meaning of" the term "the regular forces" in isolation. Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 596 (2004). Rather, it is "seeking the meaning of [a] whole phrase" —"unable with the regular forces to execute the laws" —"where it occurs in" Section 12406(3). Ibid.; see Wachovia Bank v. Schmidt, 546 U.S. 303, 318 (2006) (recognizing that the "meaning" of a term in a statute often "depends on the context in and purpose for which it is used"). Here, uprooting the meaning of "the regular forces" from unrelated contexts and injecting it into Section 12406(3) does more violence to the immediate context than the statute can bear. "Ultimately, context determines meaning," and this Court "do[es] not force term-of-art definitions into contexts where they plainly do not fit and produce nonsense.'" Johnson v. United States, 559 U.S. 133, 139-140 (2010) (quoting Gonzales v. Oregon, 546 U.S. 243, 282 (2006) (Scalia, J., dissenting)). Thus, the Court will "not assume that a statutory word is used as a term of art where that meaning does not fit." Id. at 139.
November 18, 2025 at 1:22 AM
jnklz.bsky.social
I located my 35-yr old polygraph file but can’t find the thing I’m looking for. Here’s an excerpt from a 1978 Senate hearing that describes the incident, though.
United States. Congress. Senate. Committee on the judiciary. Subcommittee on the Constitution. Polygraph Control And Civil Liberties Protection Act: Hearings Before the Subcommittee On the Constitution of the Committee On the Judiciary, United States Senate, Ninety-fifth Congress, First And Second Sessions, No S. 1845 .. Washington: U.S. Govt. Print. Off., 1978. (Testimony at 508, 510) TESTIMONY OF PETER B. HOLDEN, WICHITA STATE UNIVERSITY, WICHITA, KANS. This, of course, may seem like an insignificant point to many people here today. but I feel it is very important because there are many, many people in this country, workers and employces all, who are not aware of this distinction. A great many people have been deluded into the belief that it is the polygraph, the machine, which is capable of discerning truth from falsehood. This is simply not the case, but let me give you an example. This is excerpted from an article which appeared in the Wichita, Kans., Eagle-Bacon on March 26, 1978, describing the abuses of photo-copiers. I quote, But the top prize for imaginative use of copiers goes to detectives in Radner. Pa. They put a colander on the head of one unsuspecting suspect and hooked it up to the Xerox machine, but they told him that it was a lie detector. He bought it. Before they questioned him, the investigators slipped a typewritten card into the machine which read. "He's lying.” The suspect sat near the machine, and each time the detectives got answers they didn't like. they pushed the copy button. Out came the verdict: "He's lying." Convinced they had him dead to rights, the suspect confessed. There is, of course, a postscript to this story. "the judge was amused but threw out the case." Some will decry this as an intolerable miscarriage of justice. Perhaps it is. But we are not concerned here with criminal suspects or criminal applications of the polygraph. There hearings are concerned with people being denied employment
November 15, 2025 at 4:47 PM
jnklz.bsky.social
Oops, I misremembered. Not the next section, in the same section but modifying the next sec of the Dick Act.
Sec. 3. That section four of said Act as amended be, and the same is hereby, amended and reenacted so as to read as follows: "Sec. 4. That whenever the United States is invaded or in danger of invasion from any foreign nation, or of rebellion against the authority of the Government of the United States, or the President is unable with the regular forees at his command to execute the laws of the Union, it shall be lawful for the President to call forth such number of the militia of the State or of the States or Territories or of the District of Columbia as he may deem necessary to repel such invasion, suppress such rebellion, or to enable him to execute such laws, and to issue his orders for that purpose, through the governor of the respective State or Territory, or through the commanding general of the militia of the District of Columbia, from which State, Territory, or District such troops may be called, to such officers of the militia as he may think proper." proper. SEc. 4. That section five of said Act as amended be, and the same is hereby, amended and reenacted so as to read as follows: "SEc. 5. That whenever the President calls forth the organized militia of any State, Territory, or of the District of Columbia, …he may specify in his call the period for which such service is required, and the militia so called shall continue to serve during the term so specified, either within or without the territory of the United States, unless sooner relieved by order of the President: Provided, That no commissioned officer or enlisted man of the organized militia shall be held to service beyond the term of his existing commission or enlistment: Provided further, That when the military needs of the Federal Government arising from the necessity to execute the laws of the Union, suppress insurrection, SIXTIETH CONGRESS. Sess. I. Сн. 204. 1908. Or repel invasions, can not be met by the regular forces, the organized militia shall be called called into service of the United States in advance of of any volunteer force which it may be determined to raise."
November 11, 2025 at 5:20 PM
jnklz.bsky.social
Oh, hey! From my late husband, a reinforcement! (I knew I kept this thing around for some reason. Mostly because it made my mom laugh,)
Wooden statuette of the bird.
November 8, 2025 at 4:13 AM
jnklz.bsky.social
My walls are pretty old, so probably uneven. So I always got bleed onto the ceiling. And there was this problem unrelated to tape.
Paw prints in “Dragon’s Blood Red” by Benjamin Moore.
November 2, 2025 at 11:37 PM
jnklz.bsky.social
Here’s the outside. Replica version that is displayed at the Botanical Gardens annual Christmas Train show.
DC townhouse replica using atrial materials by Botanical Gardens.
November 2, 2025 at 11:20 PM
jnklz.bsky.social
Of course, but
A bottle of Bitburger Pils
October 31, 2025 at 10:45 PM
jnklz.bsky.social
the same as § 3. I figure if anyone would have flagged the difference, it would have been AG Stanbery.

If anyone is aware of any historical discussion of this issue, please share!
It is impossible to imagine a case in which the construction from laws in pari materia has a more cogent application; for it is evident here that the law-maker, in framing the disqualifications of the voter, took special cognizance of the third section of the amendment, and weighed it word by word, following it literally for the most part, and rejecting deliberately the very word intended to embrace a military officer. Accordingly we find, when that was the purpose, as we see it was in the third section of the constitutional amendment known as article XIV, Congress expressed that purpose very clearly. That section provides that "no person shall be a senator or representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or any State, who, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." Thie third section is expressly referred to more than once in these acts. It is made, in fact, a part of these acts. Its lunguage is followed, word for word, in these disqualifying clauses, as far as was possible, except in the particular in which one is made to apply to eligibility and the other to the right to vote.
October 31, 2025 at 2:42 PM
jnklz.bsky.social
Wait a damn minute. I have it on good authority this is a word.
FLOOF
October 25, 2025 at 4:10 PM
jnklz.bsky.social
Seemingly out of nowhere. But if we’re looking for a definition close to time to enactment, § 4 of the KKK Act of 1871 provides a pretty specific one:
Sec. 4. That whenever in any State or part of a State the unlawful ful combiuations combinations named in the preceding section of this act shall be organized and armed, and so numerous and powerful as to be able, by violence, to either overthrow or set at defiance the constituted authorities of the United States. of such State, and of the United States within such State, or when the constituted authorities are in complicity with, or shall connive at the unlawful purposes of, such powerful and armed combinations; and whenever, by reason of either or all of the causes aforesaid, the conviction of such offenders and the preservation of the public safety shall become in such district impracticable, in every such case such combinations shall be deemed a rebellion against the government of the United limits of the district which shall be so under the sway thereof, such limits to be prescribed by proclamation, it shall be lawful for the President, when in his judgment the public safety shall require -it, to suspend the privileges of the writ of habeas corpus …
October 23, 2025 at 8:45 PM
jnklz.bsky.social
I was looking for a specific memo William Rehnquist wrote to John Ehrlichman about using the National Guard as strike-breakers during the 1970 postal strike. I did eventually find it, in case anyone is interested.
MONORANDURE TO, HONORABLE JOIN D. EHRLICHMAN Assistant to the President for Domestic Affairs I enclose two instruments prepared for the President's signature, for the purposes hereafter indicated: (a) Executive Order "Calling Into Service Mambers and Units of the National. Guard" is for the puspose of permitting the President or his delegate to call into Federal service members of the Army and Air National Guard, in accordance with the provisions of 10 u.s.C. §3500 and 10 U.S.C. §8500 The basis for lnvoking those scctions is the provision of the former section authorizing tbe President to federalize members or units of the Guard whenever "the President is unable with the rogular forces to execute the laws of the United States," The Executive Order utilizes the applicable provisions of law dealing with the functions of the Post Office Department, which impose an obligation on that. Department: to process and deliver mail. at reguler intorvals, and to perform other postal fuuctions, I have been unable to locate any square procodent for the uee of 10 u.s.c.• §3500 to authorize the Guard to actually perform a Federal function, rather then simply guard or protect others who are performing that function, but the statutory lenguage Is broad enough so that a reasoned argument may be made in support of such use. (b) Proclamation"Declaring A National Enegency" is for use under the authority conferred on the President by 10 U.S.C. §673, which authorizes"an authority designated by tlie Secretary concerned to call up members and units of the Ready Reserve in the event of a national emergency "declared by the President aftor January 1, 1953.* The statutory date prevents reliance upon President Truman’s Proclamation of national emergency in connection with the Korean War, even though that Proclamation is still in effect. the Proclamation recites the adverse effects of the postal strike, including the halting of the processing of men into the Armed Forces, the fallure to receive tor collections, the failure to tranemit Social Security and welfare chocks, and the halting of private commercial trans-actions; in the light of all these facts, it is my opinion that the Preidone can justifiably conclude that there is e "national energensy" within the language of 10 U.s.C §673. William H. Rebnquist: Assistant Attorney General
October 22, 2025 at 2:38 AM
jnklz.bsky.social
Is it possible to turn off AI assistance for searches and just get sites that, y’know, contain the search terms you enter, without commenting that you must be a total idiot for entering them? I long for Back Then.
Google ehrlichman rehnquist postal strike Al Mode • Al Overview The query appears to be a conflation of the 1970 U.S. postal strike and a 2024/2025 Canadian postal strike, with the names "Ehrlichman" and "Rehnquist" being associated with the former. While President Nixon's administration had officials like John Ehrlichman and William Rehnquist, their specific roles in the 1970 strike were primarily related to the administration's response to the labor action, not the strike's direct cause or immediate events. The 1970 strike was a wildcat strike that crippled the U.S. mail system and led to significant gains for postal workers, including a large pay increase and new collective bargaining rights. O
October 22, 2025 at 2:38 AM
jnklz.bsky.social
Here’s the “concept” for Operation Graphic Hand, which demonstrates active components were to be deployed prior to determining whether these “regular forces” sufficed. It would not have made sense to interpret “regular forces” as a reference to postal workers, who were already on strike by then.
JIT (S) EXECUTION a. Concept: When directed by the President, the Secretary of the Army, through appropriate military commanders, will employ Federal Forces to augment the US Postal Department on a phased basis, as required, with the assets necessary to reestablish and maintain essential postal service for such length of time as may be necessary. Active components of all services will be employed as necessary and appropriate. Units and individuals of the National Guard may be called into Federal Service if the President determines he is unable to execute the laws of the U.S. with the regular forces (10 U.S.C. 3500). Units and individuals of the USAR may be ordered to extended active duty involuntarily only after a declaration of national emergency by the President or Congress (10 U.S.C. 672,673). The existing chain of command through CG, CONARC will be employed.
October 20, 2025 at 10:11 PM
jnklz.bsky.social
Here’s a 1917 JAG opinion (digested version) on using the Dick Act to use the Guard to remove obstructions to mail delivery.
Held, That when interference with the channels of postal, commercial, and military communication, or with other instrumentalitles of the Federal Govern-ment, is apprehended. the President has power to call forth the militia 1o fore stall such interference. This power is a concomitant of his constitutional duty to see that the laws are faithfully executed. The method for its exercise is prescribed in section 3, act of May 27, 1908 (35 Stat. 400), which authorizes the President to call forth such number of the militia as he may deem necessary to execute the laws, subject only to the condition that the avallable regular forces be employed for this purpose before recourse is had to the militia. 58-100, Mar. 19, 1917.
October 18, 2025 at 12:40 PM
jnklz.bsky.social
Yes. I think it can be agreed that Congress normally uses the same term consistently. Check out the section in the 1908 amendment after the amendment to § 4 of the Dick Act:
"SEc. . That whenever the President calls forth the organized militia of any State, Territory, or of the District of Columbia, to be employed in the service of the United States, he may specify in his call the period for which such service is required, and the militia so called shall continue to serve during the term so specified, either within or without the territory of the United States, unless sooner relieved Provided, That no commissioned officer or Restriction on time of service. enlisted man of the organized militia shall be held to service beyond the term of his existing commission or enlistment: Provided further, That when the military needs of the Federal Government arising from the necessity to execute the laws of the Union, suppress insurrection, or repel invasion, can not be met by the regular forces, the organized militia shall be called into the service of the United States in advance of any volunteer force which it may be determined to raise."
October 18, 2025 at 7:43 AM
jnklz.bsky.social
The legislative history makes fairly clear that “regular forces” means what it always has: the active duty military, but no one has questioned the govt’s reading that it just means whoever is regularly in charge of a duty. Here’s Teddy Roosevelt asking for legislation that became the Dick Act:
1o "Action should be taken in reference to the militia and to the raising of volunteer forces. Our militia law is obsolete and worthless. The organization and armament of the National Guard of the several States, which are treated as militia in the appropriations by the Congress, should be made identical with those provided for the regular forces. The obligations and duties of the Guard in time of war should be carefully defined, and a system established by law under which the method of procedure of raising volunteer forces should be prescribed in advance. It is utterly impossible in the excitement and haste of impending war to do this satisfactorily if the arrangements have not been made long beforehand. Provision should be made for utilizing in the first volunteer organizations called out the training of those citizens who have already had experience under arms, and especially for the selection in advance of the officers of any force which may be raised; for careful selection of the kind necessary is impossible after the outbreak of war." First Annual Message to Congress, Dec. 3, 1901, 14 Messages and Papers of the Presidents 6672.
October 18, 2025 at 5:43 AM
jnklz.bsky.social
In particular, the authority to call forth the militia in the event of invasions went to RS § 1642, in the title governing the militia, while the calling forth of militia in the event of insurrection against a state went to RS § 5297, in the title on Insurrection. Here they are:
SEc. 1642. Whenever the United States are invaded, or are in imminent danger of invasion from any foreign nation or Indian tribe, or in case of rebellion against the authority of the Government of the United States, it shall be lawful for the President to call forth such number of the militia of the State or States, most convenient to the place of danger, or the place of danger. or scene of action, as he may deem necessary to repel such invasion, suppress such rebellion, and to issue his orders for that purpose to such officers of the militia as he may think proper. SEC. 5297. In case of an insurrection in any State against the government thereof, it shall be lawful for the President, on application of the legislature of such State, or of the executive, when the legislature cannot be convened, to call forth such number of the militia of any other State or states, which may be applied for, or … to employ … such part of the land or naval forces … as he deems necessary.
October 12, 2025 at 6:19 PM
jnklz.bsky.social
Fun fact: Insurrection Act. The Act of Feb. 28, 1795 was the first permanent provision permitting the president to call forth the militia. By 1873, when all statutes in force were codified into the Revised Statutes, section one was split up:
Revised statutes table showing section one split into two sections destined for the title for the Militia and one for the Insurrection title
October 12, 2025 at 6:19 PM
jnklz.bsky.social
Yep, the gov brief cites all of the pages describing invocations of the IA and is presuming all situations amount to rebellion. I never said that. Here’s a footnote from the same report
40 Calling Forth Act of 1792, ch. 28, § 1, 1 Stat. 264 (repealed 1795 and current version now codified at 10 U.S.C. § 251 (2018)). It is unclear why Congress limited the ability of states to request assistance to circumstances of insurrection rather than "domestic violence" as permitted in Article IV, Section 4 of the Constitution. Perhaps "domestic violence" was interpreted to be restricted to violence of a sufficient magnitude to constitute an insurrection, or the word "insurrection" was meant to convey armed violence that did not amount to a rebellion or revolution seeking to overthrow the government in part or all of a state. See RICH, supra note 37, at 21 n. 1 (citing definition of insurrection as including resistance to government authority smaller in scope and purpose than those described by the terms "rebellion" and "revolution"). The guarantee of a "republican form of government" would seem to require federal intervention in the event of a rebellion against a state government even without its request.
October 10, 2025 at 11:00 PM
jnklz.bsky.social
There’s also this, the prez’s “right” to deploy troops doesn’t end just because the exigency is over.
"If you don't hit it within a narrow window you lose your right — that just seems unnaturally constrained," complained Nelson in response to Chaffin's arguments that the most intense protests in Portland happened back in June and July, months before the late September mobilization. He added that Trump's sending in of other federal officers "hasn't abated it," that there's "still violence going on," despite the district court's finding that there is no current significant unrest.
October 9, 2025 at 8:07 PM
jnklz.bsky.social
So the prez has a “right” to respond to activity that is no longer ongoing, not a *responsibility* to restore order when actually necessary?
"If you don't hit it within a narrow window you lose your right — that just seems unnaturally constrained," complained Nelson in response to Chaffin's arguments that the most intense protests in Portland happened back in June and July, months before the late September mobilization. He added that Trump's sending in of other federal officers "hasn't abated it," that there's "still violence going on," despite the district court's finding that there is no current significant unrest.
October 9, 2025 at 7:41 PM
jnklz.bsky.social
NG called into federal service as the organized militia should not be considered just like any other soldier for duty purposes. The President is their Commander in Chief just the same, but their service is more limited to the constitutional purposes. The Court recognized the separate status.
∞ See Selective Draft Law Cases, 245 U. S. 366, 382-389 (1918); Cox v. Wood, 247 U. S. 3, 6 (1918). « Congress has by distinct statutes provided for activating the National Guard of the United States and for calling forth the militia, including the National Guards of the various States. See 10 U.S. C. §§ 672-675 (au-thorizing executive officials to order reserve forces, including the National Guard of the United States and the Air National Guard of the United States, to active duty); 10 U. S. C. §§331-333 (authorizing executive officials to call forth the militia of the States); 10 U. S. C. §§ 3500, 8500 (au-thorizing executive officials to call forth the National Guards of the various States). When the National Guard units of the States are called forth, the orders "shall be issued through the governors of the States." § 3500.
October 9, 2025 at 3:54 PM