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The First Citation of the Heritage Guide in a SCOTUS Brief

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October 19, 2025
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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.

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by admin
October 8, 2025

From State v. Every, decided by the Tennessee Court of Criminal Appeals…

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