“To call the Guard into active federal service under §12406(3), the President must be ‘unable’ with the regular military ‘to execute the laws of the United States.’ Because the statute requires an assessment of the military’s ability to execute the laws, it likely applies only where the military could legally execute the laws. Such circumstances are exceptional: Under the Posse Comitatus Act, the military is prohibited from ‘execut[ing] the laws’ ‘except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.,’” wrote Chief Justice John Roberts, as well as Justices Amy Coney Barrett, Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson in their majority opinion.
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