"Regular Forces:" A Lesson in the Obvious

Mark Graber

The Supreme Court’s order in Trump v. Illinois asked the parties to the dispute over whether President Trump could constitutionally federalize state militia to enforce federal immigration laws in Chicago to address “whether the term ‘regular forces’” in 10 U. S. C. §12406(3) “refers to the regular forces of the United States military” or, as the Trump administration claims, civilian law enforcement personnel.  The relevant text of 1908 revisions to the Dick Act (1903) declares,  “Whenever . . . the President is unable with the regular forces at his command to execute the laws of the United States; the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute the laws.”  Both common sense and context support “regular forces” referring to the regular forces of the United States military, who are responsible for repelling invasions and suppressing rebellions.  Marty Lederman has a terrific brief demonstrating that the persons responsible for this 1908 language consistently used “regular forces” to refer to the regular forces of the United States and never used that phrase to refer to civilian law enforcement.  My survey of newspapers published at the time confirms Lederman’s findings.

Over the weekend, I began a survey of every use of “regular forces” I could find in newspapers published in 1908.  I started my survey with GenealogyBank, although plan is to examine Newspapers.com and NewspaperArchive as well.  There were 245 hits on GenealogyBank, of which I have reviewed 100.  This blog post will be updated as I review more articles, but the findings below are likely to be robust.

Many newspapers used “regular forces” to refer to the regular forces of the United States military when discussing military training exercises.  The July 1, 1908, edition of the Watertown Daily Times (NY) reported that “the regular forces this morning were divided into two armies.”  Many of these newspaper stories concerned joint exercises featuring the regular army and state militia.  The Evening News of Providence, Rhode Island on May 12, 1908, anticipated “two weeks of field maneuvers in which the national guard and the regular forces take part.”  The Baltimore American on December 10 reported that after watching and being briefed on those joint maneuvers, President Theodore Roosevelt was “warm in praise of the National Guard in conjunction with the regular forces.”

Several newspapers used “regular forces” to refer to the regular forces of the United States military when discussing the 1908 revisions to the Dick Act that made the above reference to “regular forces.”  The Buffalo Evening News (NY) on January 20, 1908, asserted that the proposed revisions would raise the state militia “from the humiliating position in which it found itself at the outbreak of the Spanish-American War, a body of troops with no official standing or privileges, to a position of equality with the regular forces.” The January 11, 1908, edition of The Daily Nonpareil (Council Bluffs, IA) declared that the Dick Act and subsequent revisions would “conform” the state militia’s “organization, armament, and discipline to that prescribed for the regular forces of the United States.”  Several newspapers reported on a different section of the revisions to the Dick Act which more clearly used “regular forces” to refer to the regular military forces of the United States.  The Providence Sunday Journal (RI) on September 27, 1909,quoted the language of Section 5: —“when the military needs of the Federal Government arising from the necessity to execute the laws of the Union, suppress insurrection or repel invasion, cannot be met by the regular forces, the organized militia shall be called into the service of the United States.”  The army repels invasions, not civilian law enforcement.

With one possible exception, none of the thirteen uses of “regular forces” in 1908 newspapers that did not refer to the regular army or quote the language of federal law referred to civilian law enforcement.  Most used “regular forces” to refer to permanent employees.  “The Montgomery Advertizer (AL) on September 4, 1908, spoke of “regular forces of stores, factories and other houses.”  The Baltimore American on March 12, 1908, referred to permanent employees of the railroad as “regular forces.” The one possible exception is an article in the February 27, 1908 ,Philadelphia Inquirer that stated, “One lieutenant, three sergeants and a squad of fifty policemen from the reserve and regular forces responded to the call.”  The context suggests that “regular forces” referred to “permanent employees” (as opposed to the “reserve” forces) and not that civil law enforcement officials were part of the “regular forces” of the United States, a reference made by no newspaper surveyed.

The newspaper articles indicate that the primary purpose of the new federal laws was to prepare state militias for military combat.  The Buffalo Evening News article quoted above noted that the Dick Act was inspired by the poor performance of state militia in the Spanish American War. Many newspapers quoted General Oliver’s declaration that the point of the Dick Act and revisions was to prepare state militias “in the event of war.”  The Idaho Register on February 14, 1908, explicitly stated that federal laws were preparing state militia for military combat and not domestic law enforcement. the article entitled “State Militia as a Reserve Force” contended, “The bill amends the existing militia law, so hereafter the state troops will be looked upon as a part of the system of national defense rather than an organization for suppression of strikes and internal troubles.”

The survey is ongoing, but no reason exists for thinking reading more newspapers will change the balance in a scorecard that presently reads 80 papers in favor of the Illinois interpretation of “regular forces” and 0 for the Trump Administration's interpretation.  All that is likely to happen is Illinois will continue running up the score.  A little history provides another reason for the utter implausibility of the claim that “regular forces” means civilian law enforcement.  In 2025, the president has access to vast civilian law enforcement agencies such as the Federal Bureau of Investigation, the Immigration and Customs Enforcement, and the Department of Homeland Security.  Such bureaucracies either did not exist when the Dick Act was framed or revised or were in their infancy.  The army was the main and usually the only vehicle for law enforcement when uprisings occurred.  A president who could not call on the military to repel invasions, suppress rebellions and prevent uprisings would in almost every place in the United States be unable to execute any federal laws.  The reference to "regular forces" would have been meaningless in almost all cases.