In moments of national tension, questions about executive power often come to the forefront. When can a president deploy the National Guard? What role should states play in maintaining order? And how should the country balance swift action in a crisis with the constitutional limits designed to protect liberty?
In this episode of You Might Be Right, hosts and former Tennessee governors Phil Bredesen and Bill Haslam explore questions about federal power, states’ rights, and the role of the military in domestic affairs.
They are joined by Rosa Brooks, a law professor at Georgetown University and former senior advisor at the U.S. Department of Defense, and John Yoo, a law professor at the University of California, Berkeley, and former deputy assistant attorney general at the Department of Justice.
Together, they discuss the constitutional foundations of the United States National Guard, historical examples of federal intervention, and the challenges of governing during moments of crisis.
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“The concern is about overreach by the federal government.”
Rosa Brooks began by explaining the historical roots of the National Guard and its role in the American system of government.
The Guard traces its origins to colonial militias. Early Americans feared centralized authority, so states retained control of their own military forces while granting the federal government limited authority to assume command.
“The concern,” Brooks explained, “is about overreach by the federal government and the use of military forces to suppress behavior that should be protected by the Constitution.”
Most of the time, National Guard units operate under the authority of state governors. But federal law allows the president to assume control in certain situations, such as when federal law cannot otherwise be enforced.
When does a crisis justify federal action?
A central question in the episode: When is federal intervention appropriate?
Historically, presidents have invoked federal authority when states were unwilling or unable to enforce federal law.
Brooks noted that using military forces domestically carries risks and has traditionally been approached with caution. At the same time, she said presidents have generally shown a lot of restraint. National Guard deployments are rare and typically reserved for situations where leaders believe there is a compelling reason to act.
“What is the difference between war and crime?”
John Yoo approached the issue from another perspective: the distinction between military action and traditional law enforcement.
“With war, we use the military and force,” Yoo explained. “There are no warrants, juries, or trials. With crime, we arrest people and bring them before a court.”
Today, similar questions arise when considering how to respond to transnational criminal organizations or drug cartels.
“Can we be at war with drug cartels?” Yoo asked. “Or are we limited to having a war? If we’re at war, it has to be with Venezuela, the country. I think that’s an important limitation on presidential power.”
Federal authority and the role of states
Another theme was the balance between federal authority and state autonomy.
Unlike many countries, the United States gives states significant control over law enforcement and governance. That structure can create tension when federal priorities diverge from state policies.
According to Yoo, states cannot obstruct federal law enforcement, but they are not required to assist it either.
“They can stand aside and refuse to cooperate,” he said. “That’s perfectly legitimate under our constitutional system.”
Disagreements between levels of government create uncertainty about who is responsible for maintaining order during moments of unrest.
“How much of democracy relies on convention?”
Governors Bredesen and Haslam noted that American governance depends not only on formal laws, but also on longstanding norms and practices.
Much of the system works because leaders historically respected unwritten limits on the use of power.
“One of the things that’s stood out to me,” Bredesen said, “is how much of what we consider American democracy is based not in law, but in convention and practice.”
As debates about executive authority continue, those traditions may remain just as important as the laws themselves in shaping how power is exercised.
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