Martin v. Mott Enters the Stage
The scope of judicial review of the president’s domestic deployment decisions, and the federal courts’ larger predicament
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Judge Charles Breyer’s opinion last week in the Los Angeles National Guard Deployment case cited Martin v. Mott, an 1827 Supreme Court decision about the president’s discretion under the Militia Act of 1795. Mott, an opinion by Justice Joseph Story, will be of central importance to judicial review of the president’s National Guard order in the Ninth Circuit (including in the hearing tomorrow), and in any stay or merits ruling by the Supreme Court. It will also be important to judicial review of related statutes such as the Insurrection Act, should the president invoke them.
This essay explains Mott, assesses its relevance, and ponders a statement in the opinion by Story that captures the difficulty of judicial review of the L.A. deployment, and of Trump 2.0-era actions more generally.
Mott
The issue in Mott was whether a New York farmer could be fined for his failure to join the New York militia during the War of 1812. The Militia Act of 1795, a precursor to part of what we today call the Insurrection Act, authorized the president to call forth the militia “whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe.” President James Madison made the call, and Mott, who didn’t show up for service, claimed it was invalid as to him.
Conventional wisdom says that the Supreme Court in Mott held that the 1795 Militia Act “granted broad power to the Executive to determine, for himself, when circumstances necessitated the calling forth of the militia, and such a determination was not subject to judicial review,” as Steve Vladeck wrote in 2004. Elizabeth Goitein and Joseph Nunn similarly read Mott to hold that “courts could not review the president’s determination that an exigency existed that required the deployment of military troops.”
Yet Mott never expressly said that the president’s judgment under the 1795 Act was immune from judicial review. The Court stated the “question” as follows: “Is the President the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question, upon which every officer to whom the orders of the President are addressed, may decide for himself, and equally open to be contested by every militiaman who shall refuse to obey the orders of the President?” This question suggests a focus on the president’s vertical authority down the chain of command, not on the horizontal question of judicial review.
Story answered the question in the next sentence: “We are all of opinion that the authority to decide whether the exigency has arisen belongs exclusively to the President, and that his decision is conclusive upon all other persons.” In light of the focused question to which this responds, one might think that the president’s exclusive authority vis a vis “all other persons” means persons in the president’s chain of command. And other passages in Mott suggest that the holding about presidential exclusivity was directed at “subordinate officers,” as the Court put it.
But the Court also said that the statute “does not provide for any appeal from the judgment of the President” and that it makes the president “the sole and exclusive judge of the existence of those facts” related to the existence of the danger that triggers the law. The Court subsequently, most notably in Luther v. Borden, read Mott to be about the president’s exclusive authority under the Militia Act of 1795 with respect to judicial review. Decisions subsequent to Luther relied on Mott for absolute judicial deference to the president or an executive officer in several contexts. I believe the last time Mott was cited in a Supreme Court decision was Justice Sotomayor’s concurrence in Zivotofsky v. Clinton (2012). She described Mott there as “declining to review the President’s determination that an ‘exigency has arisen,’ necessitating the ‘call [of] the militia into actual service,’ recognizing need for ‘[a] prompt and unhesitating obedience to orders is indispensable’”).
Thus the conventional wisdom.
Mott and the L.A. Deployment
Does Mott control the contemporary interpretation of 10 U.S.C. 12406, the statute at issue in the L.A. case? That statute authorizes the president to call up the National Guard when one of the triggering criteria—as relevant here, “rebellion or danger of a rebellion” or presidential inability to execute the law “with the regular forces”—is satisfied.
Mott interpreted an analogous and analogously structured law to confer unreviewable discretion on the president. The 1795 statute did not on its face give the president interpretive authority, but merely authorized him to federalize the militia when certain criteria (invasion or danger of invasion) are satisfied. Yet Mott stated broadly: “Whenever a statute gives a discretionary power to any person to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts.” The government’s basic position, expressed in its papers before Judge Breyer, is that the same inference should apply to the analogously worded and structured 10 U.S.C. 12406.
Judge Breyer’s main answer to this argument was to rely on a recent district court opinion by Judge Rodriguez that rejected strong judicial deference to the president’s determinations under a quite different statute, the Alien Enemies Act (AEA). Judge Rodriguez discussed Mott but treated it as a decision warranting strong deference. He then relied on the much-later Ludecke v. Watkins rather than Mott in declining to give the president deference under the AEA. The Rodriguez opinion is an extraordinarily weak basis, really no basis at all, on which to rest Mott’s inapplicability to 10 U.S.C. 12406.
There are arguments that California can make for judicial review (though it did not make most of them, or any of them well, in its opposition to the stay motion in the Ninth Circuit). Congress in 1861, in what became 10 U.S.C 252, gave the president express interpretive authority—“[w]henever the President considers”—to decide “that … rebellion against the authority of the United States, make[s] it impracticable to enforce the laws of the United States.” The otherwise analogously worded statute in 10 U.S.C. 12406, enacted in 1903 and modified in 1908, did not contain any such express indication of presidential interpretive authority.
Also, a 1932 Supreme Court decision, Sterling v. Constantin, suggested that the deference established by Mott and Luther was not absolute in the context of a governor’s imposition of martial law. Constantin’s logic—that deference would not extend to executive action “unjustified by the exigency or subversive of private right and the jurisdiction of the courts”—might apply to the president as well. And (as Judge Breyer suggested in a footnote) Mott involved a call to redress foreign invasion. The Commander in Chief power, relied on by Story in his Mott statutory interpretation, might have greater purchase in that context than in the domestic deployment under Section 12406. Finally, there have been many potentially pertinent developments subsequent to Mott, notably the political question doctrine analysis in Zivotofsky, that must be considered.
The Larger Predicament
Perhaps the best evidence for the “no judicial review” reading of Mott came in Justice Story’s response to the concerns that a president might abuse his power in domestic military deployments:
It is no answer that such a power may be abused, for there is no power which is not susceptible of abuse. The remedy for this, as well as for all other official misconduct, if it should occur, is to be found in the Constitution itself. In a free government, the danger must be remote, since in addition to the high qualities which the Executive must be presumed to possess, of public virtue, and honest devotion to the public interests, the frequency of elections, and the watchfulness of the representatives of the nation carry with them all the checks which can be useful to guard against usurpation or wanton tyranny.
Since the passage lists the residual “checks” on the president as elections and congressional “watchfulness” and does not mention judicial review, it supports the “no judicial review” reading of Mott.
I posted without comment this passage from Mott last week on X. It turned out to be a Rorschach test that sparked two very different reactions (on X and in personal correspondence). The reactions capture the predicament that federal courts face in addressing President Trump’s authorities to deploy the military in the domestic sphere—not just for the relatively modest defensive purposes outlined in the matter at issue in the L.A. deployment, but also for the much more aggressive law enforcement and rebellion-suppression uses of the military contemplated by the easier-to-satisfy but not yet invoked Insurrection Act.
The pro-Trump reaction to the Story quote was: Exactly right! Congress designated the president to determine the need for emergency use of military authority in the domestic sphere, and courts should stay out of it. Yes this power, like any power, can be abused. But there was violent disruption of law enforcement and the potential for much more. The elected president is best positioned to assess the “public interest” in deciding to federalize the National Guard to address these dangers, and was given that task by Congress. It would be an abuse of power, of judicial power, for unelected courts to second guess the emergency assessment. As Story made clear, the proper “remedy” for any presidential abuse of this power is democratic politics—presidential and congressional elections, and congressional “watchfulness” (oversight, impeachment).
The anti-Trump reaction to the Story quote was: Exactly right! Story stated the conditions that justified absolute judicial deference to the executive branch’s assessment of the emergency use of military power in the domestic sphere—conditions that are entirely lacking today. The danger of presidential abuse, and of “usurpation or wanton tyranny,” is very far from “remote” in 2025 precisely because Trump lacks “public virtue, and honest devotion to the public interests,” and because the “watchfulness of the representatives of the nation” is entirely absent. Courts today, unlike in 1827, are (other than “frequen[t] . . . elections”) the last line of defense against creeping militarization of the homeland and must scrutinize Trump’s actions very carefully.
To which the pro-Trump advocate might reply: This is exactly the logic Story was refuting! The lines between proper use and abuse under both the 1795 Act and 10 U.S.C. 12406 are contested. The point of absolute deference is that courts are in no position—especially by comparison with the president—to assess the “public interest” concerning the emergency triggers under either statute. Judge Breyer and the state and local critics of Trump’s National Guard call are undervaluing the legitimacy of a massive deportation law enforcement effort and underestimating the danger in the violent obstacles to that effort. And the “power” to make this call is, as Story said of the 1795 Act, “of a very high and delicate nature” that might not admit of “strict technical proof” and cannot “be executed without a correspondent responsibility.” That means Trump decides.
To which the anti-Trump advocate might reply: The Constitution and laws of the United States are not a suicide pact. When such a momentous and dangerous domestic military power is placed in the hands of a man with authoritarian aims and tendencies, when the power is admittedly (and gleefully) exercised in a way that serves White House political interests, and when all other checks are gone, courts as the last line of defense cannot give absolute deference.
To which the pro-Trump advocate might reply: This illegitimate argument amounts to saying that courts in the name of the law can disregard the law because they think Congress in its wisdom authorized a presidential power too prone to abuse and too dangerous for courts to countenance.
To which the anti-Trump advocate might reply: In addition to the other factors that distinguish Mott, nothing in the text of 10 U.S.C. 12406 demands absolute deference. And while of course courts should give some consideration to the president’s views, they cannot eschew their responsibility to decide whether there is an actual “danger of a rebellion” or presidential inability to execute the law “with the regular forces,” especially when the law is being used in a transparently and dangerously opportunistic way in a context that defies Story’s assumptions.
And so on.
Conclusion
Here is my view, for what it is worth.
Mott is a powerful precedent for the federal government but is not on all fours with the L.A. deployment matter for reasons stated above. If Mott governs the judicial review issue here, then Story’s response to the dangers of abuse is right: Redress has to come from the political process, not courts.
That would be a bitter pill for many since Congress is supine at the moment. But politics can change fast, and might be changing fast right now. Moreover, law, and not an assessment of the danger to which law might be put, is the only legitimate basis for courts to stand up to a president.
Judges of course often assess the consequences of decisions when exercising judicial review of executive action. But when they do so, they still must convincingly explain why the law properly interpreted denies the president the authority he claims. This judicial duty is vital to the threshold question of judicial review, especially in a context where judges have traditionally deferred to the president, and where a Supreme Court opinion penned by Joseph Story that denies judicial review seems at first (and second) glance to be highly relevant.
Judge Breyer failed in this task—not just on the scope of judicial review, but on aspects of the merits as well. I hope the Ninth Circuit, however it rules, does a much better job on the law in resolving the motion for stay pending appeal before it.