On May 17, 1954, the US Supreme Court issued its landmark defense of the Fourteenth Amendment in the case of Brown vs. Board of Education. The decision was not joyfully received in a lot of areas (as an aside, de facto racially segregated schools were still in place in southside Virginia until 1969). One of those places was Arkansas where the state government mounted a legal challenge against the decision. During the summer of 1957, a federal court ordered the Little Rock school district to integrate when the school year began on September 4. The governor, Orval Faubus, refused. In response, he called out the National Guard to prevent black kids from entering the school on the grounds that there was “…imminent danger of tumult, riot and breach of peace and the doing of violence to persons and property.”

Eventually, a small number of black students succeeded in entering Little Rock High School and the result was a mob of over 1,000 people converging on the school and the black students were escorted out.

On Monday, September 24, President Dwight Eisenhower literally “read the Riot Act” to Little Rock. He ordered anyone obstructing entrance to the school to cease and desist. To underscore his point, the next day he ordered the Arkansas National Guard into federal service and deployed elements of the 101st Airborne Division from Fort Campbell, KY, to Little Rock.

Yesterday, President Trump issued a proclamation ordering some National Guard units into federal service for duty on the border with Mexico. Nothing here is unusual. The last two presidents (G. W. Bush in June 2006 and Obama in July 2010) federalized National Guard units and ordered them to help the Border Patrol in securing our border.

But that was before being a member of the #Resistance was in vogue. And into the battle waded Oregon Governor Kate Brown.

This is ridiculous. Article 2, Section 2 of the US Constitution states:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

While President Trump can’t send the Oregon Guard anywhere when they are in state service, he can send them anywhere he pleases once he calls them into federal service. For instance, Oregon’s 41st Brigade served in Iraq. As the Arkansas example shows, the president’s power to call up the Guard supersedes the role of the governor as commander-in-chief of the state Guard even when it is already in state service.

Like Orval Faubus, Kate Brown is in command of the state Guard right up to the point where the president calls it into federal service. Then she’s no longer its commander in chief. She’s a bystander.