If the relevant reports are correct, President Donald Trump is considering sending units of the Texas National Guard to Chicago to carry out federal law enforcement missions. But he might do so without taking full responsibility for what might happen when armed Texans descend upon Chicago. Trump isn’t likely to invoke the much-discussed Insurrection Act, which, under limited circumstances, permits the president to deploy military force for domestic purposes. Instead, the administration would rely on a little-known provision of federal law under which the National Guard can undertake missions “at the request of the President or Secretary of Defense.” Because the Texans would be granting a “request” rather than following an order, the troops would not, legally, be “federalized”: the Texas National Guard would remain under the command of the governor of Texas, even when operating in Illinois.
From the president’s perspective, this arrangement might seem ideal. It inflicts pain on an enemy (the blue city of Chicago), and, because the work is done not by the federal government directly but by a willing ally (the red state of Texas), it diffuses Trump’s responsibility for anything that might go wrong. But the Supreme Court should be less keen on the idea, because it’s thoroughly unconstitutional. It violates one of the most fundamental doctrines in American constitutional law: that the citizens who bear the burdens of governmental action must be able to hold the relevant government accountable.
The Supreme Court’s recognition of that principle is at least as old as its 1819 decision in the landmark case of McCulloch v. Maryland. The question in McCulloch was whether Maryland could tax a branch of the Bank of the United States, located within Maryland. The Bank was a controversial institution — opponents like Thomas Jefferson argued it gave the federal government too much power — and Maryland didn’t like it much. So the Maryland legislature cleverly wrote a statute imposing a prohibitively high tax on all banks doing business in the state without charters of incorporation granted by Maryland’s own legislature. At the time, there was precisely one such bank: the Bank of the United States, which was chartered not by Maryland but by Congress. And in one of the most influential judicial opinions in American history, Chief Justice John Marshall held the tax unconstitutional.
As Marshall explained, a fundamental problem with Maryland’s tax was the misalignment between the people who imposed it and the people who had to pay it. When the Maryland legislature taxes Marylanders, it will keep the tax burden reasonable, because Maryland taxpayers can vote their legislators out otherwise. That’s why states can be trusted with the power to tax their own. But the people of State A would never authorize the legislature of State B to tax them, because they’d have no mechanism for holding State B’s lawmakers accountable for abuses of the power. (Taxation without representation, as someone once said, is tyranny.) And for a single state to tax the Bank of the United States would, in effect, be for that state to tax the people of all the other states, because the costs incurred by the Bank of the United States would be borne by the entire American public. By the same token, Marshall noted that Maryland could collect a tax from the Bank of the United States if it were a tax imposed uniformly on all banks, or all businesses, in the state of Maryland: The votes of other taxpayers, exercised to protect themselves from excessive taxation, would have the effect of protecting the Bank of the United States, too. What Maryland couldn’t do was impose a cost specially or disproportionately on people who could not hold Maryland’s lawmakers to account.
Using military personnel for domestic law enforcement is dangerous and fraught, and any political leader who does it should be held strictly accountable for the consequences. Given the absence of any real need for militarized law enforcement in Chicago, it would be a grave abuse of power for the president to send any troops there on a law-enforcement pretext — as it was when he mobilized the National Guard for law enforcement in Washington, D.C. But for more than one reason, that mobilization in D.C. is easier to defend constitutionally than sending the Texas National Guard to Chicago would be. Justifiably or not, constitutional law treats all of D.C. as an exception to the McCulloch principle: The people of D.C. are, as a general matter, subject to a lawmaking authority — Congress — that they play no part in electing. (That’s why some D.C. license plates bear the protest slogan, “Taxation Without Representation.”) But regardless of whether that exception is justified in D.C., it has absolutely no application in Illinois. Like Nebraskans and Pennsylvanians and Kansans, Illinoisians are constitutionally entitled to be constituents of whatever body governs them.
Any military force is likely to behave with less restraint toward a population to which its leaders are not responsible than toward a population to which its leaders must answer democratically. If the Texas National Guard behaves poorly in Chicago, the locals have no electoral mechanism for holding Texas authorities to account. The governor of Texas never appears on any ballot in Illinois. He has nothing to fear, politically, from the people his National Guard will police. Surely a militarization at the hands of a non-responsible power is no less tyrannical, and no more constitutional, than a tax imposed by one.
