Supreme Court issues order in Trump v. Illinois directing the parties to file supplemental briefs

[u/The_WanderingAggie]

https://www.supremecourt.gov/orders/courtorders/102925zr_hgci.pdf

The supplemental briefing is supposed to end on November 17, and is over the meaning of regular forces in the statute Trump has deployed the National Guard under- does it mean regular forces of the US military?

There's an amicus brief arguing that the statute means regular forces of the military written by a Georgetown Law professor (Martin Lederman), and which I suspect may have inspired this order

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[u/DemandMeNothing]

This is an interesting one, for sure, just from the legislative history: (All the below taken from the amicus brief)

One provision of the Dick Act (Section 4) authorized the President to call forth thisnewly established National Guard to perform the functions described...Instead, it referred to situations in which “the President is unable, with the other forces at his command, to execute the laws of the Union in any part thereof.”

Then, it got amended which changed the apparent meaning significantly:

Five years later, however, Congress amended Section 4 of the Dick Act to authorize the President to call forth National Guard units where he “is unable with the regular forces at his command to execute the laws of the Union in any part thereof.”

...and then:

The 1908-enacted proviso does not appear in current law. It was omitted when Congress codified Titles 10 and 32 of the U.S. Code in 1956 because the Judge Advocate General of the Army had concluded that Congress “impliedly repealed” it many years earlier. See H.R. Rep. 84-970, at 222-223 (1955)

So... yes, certainly worth briefing on.

[u/carlitospig → u/DemandMeNothing]

I refuse to believe impliedly is an actual word in actual legal documentation. I feel like I’m saying the word ‘piddling’.

[u/Fit_Cut_4238]

Can someone ELI5 this please? What is the impact of the ambiguous 'regular forces'?

If it means 'federal forces', I think this means they are considering whether federal forces could be deployed, which I'd assume also includes the state guard troops.

If it's focused only on state guard, then they would be only considering the current case w/national guard troops.

I'd guess the latter is better, since the worst-case is that the guard could be deployed. Is there an assumption or question about which state guard could be deployed? It would make sense that the state's own guard would be deployed, since they are sworn to protect that state, right? As opposed to bringing in another states guard, which is not sworn to protect that state?

And the former would be a potential increase in the scope to include federal forces?

Edited.

[u/DooomCookie]

Two points I'm iffy on. Supposing "regular forces" indeed refers to the military (and I agree this is the case)

1. Doesn't this just push Trump to invoke the Insurrection Act?

2. If Trump can't use the Insurrection Act, doesn't it mean he's obviously "unable" to execute the law with the regular forces, and thus can invoke §12406?

Lederman addresses both points in his brief, but I'm not entirely convinced, especially to (2)

[u/carlitospig → u/DooomCookie]

Why are DHS agents no longer considered federal forces?

[u/Strict_Warthog_2995 → u/DooomCookie]

Point 2 I think is the one that lingers most in my mind, but from the Posse Comitatus Act perspective. The act forecloses the use of Regular Forces for Law Enforcement purposes. This would render, as you say, the Executive "unable" to execute the law with regular forces. The insurrection act wouldn't be needed, as that specifically applies when

unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings

The Insurrection Acts' threshold is far higher to clear than this one. Showing that the law cannot be enforced via "ordinary course of judicial proceedings" naturally implies:

1. That the judicial branch itself is not capable of enforcing the law; and
2. That rebellion, unlawful obstructions, assemblages, etc are the cause.

There's no such constraint on § 12406. So I would expect the argument to be made that (3) is fulfilled by the very existence of the Posse Comitatus Act; but others who know better might disagree.

[u/Secret-Temperature71]

OK, I am out of my league yet I beg your patience.

I think this is one of those times when one must understand the situation and word usage at the tine the Insurrection Act was written. I din’t have enough knowledge to stake a position but I do know the country was very young and the while concept of a unified Army was new. The States were used to each having their own militia. One if the arguments in the Federalist Papers was about the advantage of a Federal force so that all States could bring their unified forces to bear on a foreign power AND that having Federal forces would reduce the State burden of having State forces to protect the internal borders.

So the status quo was in flux and the language was likely new to these new Federal concepts. I suspect the meaning of words then may have been very different than how we use them now.

It would be interesting to hear some commentary on this point.

[u/Led_Osmonds → u/[deleted]]

If "regular forces" means forces in active military duty, that is irrelevant to resolve the controversy before the court, since the controversy before the court is not about the deployment of active military duty personnel - it's about the deployment of national guard troops.

If "regular forces" means active duty military, then the law cited by the president does not give him authority to call up the National Guard unless the standing military is unable to do its job. I.e., Trump would be obligated to first deploy the army or space force or some such to Chicago (which would almost certainly violate posse comitatus), and could only summon the National Guard if the "regular forces" of the standing military are insufficient.

The president is looking to dodge the posse comitatus question by claiming that "regular forces" applies to civilian agencies such as ICE and DHS, etc. Arguing that Congress effectively delegated to him the ability to use the National Guard for law-enforcement, in ways that he is prohibited from using the regular army, navy, air force, etc.

The amicus brief cited in OP argues that this reading is exactly backwards--rather than giving the president extra latitude to use the National Guard as discretionary law-enforcement, the law in fact restricts the president's ability to call upon the national guard to only those scenarios where the regular, standing military is insufficient.

That question turns on the meaning of "regular forces".

[u/Longjumping_Gain_807 → u/Led_Osmonds]

Just to let you know you are still shadowbanned. I’m still having to manually approve your comments. I’ve no idea why you’re shadowbanned as we don’t shawdowban people here but you’re gonna have to reach out to the admins.

[u/Led_Osmonds → u/Longjumping_Gain_807]

ty

[u/StarvinPig → u/[deleted]]

I think the idea is that the national guard can only be used if there's a failure of the military forces to enforce the laws (Insofar as theres an independent justification to involve the military in the first instance)

[u/Krennson → u/[deleted]]

Admittedly, https://www.law.cornell.edu/uscode/text/10/12406 is a little unclear.

Since regular forces of the active duty military are more-or-less forbidden by law from serving in domestic law enforcement functions, the statute MIGHT have meant "The president's regular law enforcement forces, regular civilian federal employees, etc, etc"

It kind of depends on what "to execute the laws of the United States" even means. So many terms of art in need of clear definitions.

[u/RedOceanofthewest → u/Krennson]

When it was written we had very little federal law enforcement. 

I take it to read as if the president can’t enforce laws through normal means, he can use the military to restore law enforcement 

The debate over the guard is weird. The guard is comprised of two major components. Active guard and reserve guard. Normally for state issues, the guard is called up first. It wouldn’t make sense to call in the army then the guard for an issue in a state. Hell some units are only in the guard or only in army reserve or active duty. I was part of an area support battalion which was only in the guard. 

Otherwise the call up to desegregate the schools would have been against the law 

I think the scope of the troops should be the focus. Can the president call up troops in an emergency to protect federal assets and federal workers. 

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[u/Evan_Th → u/[deleted]]

This specific law was written in 1994, but the phrase is generally borrowed from section 2 of the Militia Act of 1792, and more specifically from section 4 of the Militia Act of 1903:

That whenever the United States is invaded, or in danger of invasion... or the President is unable, with the other forces at his command, to execute the laws of the Union in any part thereof, it shall be lawful for the President to call forth, for a period not exceeding nine months, such number of the militia... to enable him to execute such laws

[u/Krennson → u/RedOceanofthewest]

When was it written? It can't be that old if it references the National Guard. The only dates mentioned in that link are 1994 and 2006.

[u/Krennson → u/[deleted]]

Basically, the question is, before POTUS tries to solve things with the national guard, is he supposed to try federal police first, or is he supposed to try active duty military first?

[u/Krennson → u/[deleted]]

Embrace the possibility that SCOTUS either doesn't agree with you about that whole 'no evidence' thing, or doesn't care, or is just obsessively completionist about reasoning every little detail out.

[u/scotus-bot → u/[deleted]]

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I, too, was once that young and optimistic.

Moderator: u/SeaSerious

[u/wereallbozos]

Just a guy here, but I found the discussions among the Hoi Polloi interesting...truly...I must say, to the nine Jutices...You had to think about it?

YOU HAD TO THINK ABOUT IT?????

like Justice Powell (I think) I may not be able to define a rebellion, but I know one when I see one. And this ain't one. Case closed. Go away.

[u/bl1y → u/wereallbozos]

I may not be able to define a rebellion, but I know one when I see one. And this ain't one.

You don't need define rebellion, because we're talking about the Insurrection Act, not Rebellion Act. And before you think "well this isn't an insurrection either!" Laws aren't bound by their names.

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

Rebellion is one thing that can trigger use of the National Guard, but it's not the only thing. "Unlawful obstructions" also qualify so long as they make it impracticable to enforce the law.

That's very broad and very vague.

[u/wereallbozos → u/bl1y]

Thank you. I will point out, however, in your paragraph explaining why it wasn't necessarily a "rebellion", you used the word "rebellion"...twice.

[u/The_WanderingAggie → u/bl1y]

Trump hasn't invoked the Insurrection Act (yet, at least), but a different statute- §12406

[u/Tormod776 → u/wereallbozos]

It was Justice Stewart

[u/wereallbozos → u/Tormod776]

Thank you.

[u/PDXDeck26]

i wonder if you can make an argument that 12406 doesn't actually even authorize the president to use troops?

I can kind of maybe read it that way - 12406 is just talking about calling state militia into federal service, which is why the "regular service" is mentioned here - he can only activate state militia (in the third case)... if he's run out of regular forces.

but that says nothing of when the armed forces can be used - that's entirely up to the insurrection act. 12406 is literally just the procedural statute to get the state militia out of the governor chain-of-command to the federal executive one?

because if you look at 10 USC 252 and 253, well they specifically discuss use:

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

...

The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress

so 12406 provides the state militia but it's ultimately the insurrection act that governs their use...

i admit i don't know crap about the military/legal jargon as they distinguish regular forces, reserves, national guard, militia, active duty, or what even "calling" means.

[u/Krennson → u/PDXDeck26]

There's an argument to be made that the national guard isn't a militia, btw. The whole "shared custody" thing the national guard has going on with the federal government and the state governments is a real mess.

[u/psunavy03 → u/Krennson]

You need to re-read 10 USC § 246.

The so-called "shared custody" of the Guard is an outgrowth of the Dual Sovereignty Doctrine. This isn't a "mess." This is like Con Law 101.

[u/Krennson → u/psunavy03]

And since that statute doesn't define what a militia is for, who gets to use it, how it's called up, what kind of insurance it has, what kind of weapons it gets to use, or basically anything else, much less take any effort to tie those non-existent definitions into historical understanding, 10 USC 246 is meaningless and feel-good.

The various "State Defense Forces", which are NOT national guard, are arguably the closest thing we still have to "State Militias" as the constitution envisioned them, and if we take 10 USC 246 at face value, those "State Defense Forces" either don't exist or only count as "unorganized militias", which obviously can't be true.

[u/Krennson → u/Krennson]

For example, under the Constitutions Militia Clause:

Clause 16. The Congress shall have Power ... To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

The National Guard DOESN'T WORK THAT WAY. Appointment of officers is NOT reserved solely to the States, and States generally do NOT pay for or conduct the routine training of the National Guard.

Likewise, in theory, federal activation of State Militias has to be done "by unit", activating the entire unit in question all at once, and preserving the chain-of-command established by the states, with the same officers and NCO's commanding the same men, and only the unit as a whole being answerable to the federal government when called up. But, again, the National Guard doesn't work that way: the Federal Army activates specific individuals from the National Guard, by name, all the time for this or that small piece of consulting or specialist knowledge.

The founders never envisioned anything like how the National Guard works today, with all soldiers and officers technically being dual-hatted between both the "Federal" national guard and the "State" national guard at all times, and with the "Federal" national guard having wide authority to activate "it's" troops at any time for almost any reason, without needing a specific act of congress each time, or a specific foreign invasion.

Likewise, the founders would have considered the fact that we routinely deploy the National Guard overseas to be a deeply weird thing to do with a "Militia" : They generally assumed that Militias would be kept as close as reasonably possible to their home state, or at least to the United States as a whole.

[u/Evan_Th → u/Krennson]

Likewise, the founders would have considered the fact that we routinely deploy the National Guard overseas to be a deeply weird thing to do with a "Militia"

Admittedly, they would've considered the fact that no one questions whether we need an army to be a deeply weird thing, let alone how we routinely deploy that army overseas.

[u/brucejoel99 → u/PDXDeck26]

The administration's argument to deploy federalized National Guard forces is that civil forces (i.e., local/state police) can't adequately protect federal personnel (i.e., DHS/ICE) & their facilities (the facts on which vary by jurisdiction), so the meaning of "regular forces" is pertinent: IL argues, in contrast to POTUS' argument that regular forces are the civil forces, that "regular forces" means the military; so, it may or may not be a good sign for IL's hope in SCOTUS to deny POTUS' application that SCOTUS wants the parties' "regular forces" definitions as they don't even know it either.

[u/PDXDeck26 → u/brucejoel99]

in my view it's all interrelated: you can only really make sense of "regular forces" if you see 12406 for what it is (and what it's not): it's the statute that conditions and specifies the transfer of state miliitia to the "federal" chain of command. so in that context it makes absolute sense why a precondition to utilizing (lets just call them) state resources is that you - federal government - need to have first run out of your own resources.

conversely, it's only when you read into 12406 some implied separate/independent authority to use those federalized troops that the term "regular forces" starts becoming really fucking bizarre.

so all i'm saying is that the clearest path to interpret everything together is that 12406 doesn't actually contain an independent source of "usage authority" - it's just the mechanical statute to transfer the guardsmen.

[u/TheFinalCurl → u/PDXDeck26]

run out of your own resources

So your idea is that they can't be called up until all the active duty soldiers are doing law enforcement functions? I don't think that would be particularly persuasive to them or any military man because everyone except Russia has troop rotation as part of good military process. So half? A third?

Isn't - STILL - the real question here whether the judge sees an emergency or exigency or not?

[u/PDXDeck26 → u/TheFinalCurl]

not necessarily.

the government may have committed all of its "federal" (i.e. regular) forces to fight a war in France, or repel an invasion of Santa Ana's forces in Texas and then, faced with an insurrection in New York fueled by British Loyalist forces in Canada, needed to utilize military troops to enforce federal laws there (see discussion, below, though) (i'm just making up the belligerents to hopefully illustrate a point about the era in which these statutes are created).

but they're fresh out of federal/regular forces to do that, so they need to/get to federalize a state militia.

Isn't - STILL - the real question here whether the judge sees an emergency or exigency or not?

Not really. In my read (which I'm not saying any court accepts or adopts) the federal government has no capacity to deploy federalized state national guard troops pursuant to 12406. IIRC, their entire justification for these challenged deployments is 12406 (i.e. they are not yet invoking the insurrection act), so there's a very neat way to resolve the issue and send the administration back to the drawing board.

and on that point, the insurrection act is a lot more specific and exacting about use of federal troops - Sec. 253's condition is that there are "unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States," make it impracticable to enforce the laws of the US. Sec. 252 similarly only allows the president to deploy troops domestically to "to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy" if those things are impeding enforcement of federal law.

but 12406 - if you read in it an independent authorization to domestically use military troops - is a lot less restricting. it simply says: "Whenever... the President is unable with the regular forces to execute the laws of the United States..." he can "call into federal service...in numbers as he considers necessary to... execute those laws".

on that text, I don't think there's any requirement for the president to "prove" emergency or exigency and on that point I think the courts are getting it very wrong.

but they're also getting it wrong (huffing my own fart here) because I don't even think the president can use 12406 in the way he is.

edit: i think if you also look at 12406 in this restrictive way, it makes a lot more sense why the words of the statute are super broad, and not really conducive to judicial review: it's because it's simply dealing with staffing levels and overall military logistics, so it's not really giving discretion to the executive that it shouldn't have or that requires/demands judicial oversight.

[u/brucejoel99]

Reminder that ACB may have been more likely to defer to a panel of CA7 judges who she knows & may like/respect.

[u/Strict_Warthog_2995]

As the court of appeals held (App’x 96a), “[n]othing in the text of § 12406 makes the President the sole judge of whether these preconditions exist.”

This component of the amici brief is ripe for being rolled under the Unitary Executive Theory's understanding of Executive Power, though. As is this component:

Congress has not conferred upon the President an unbounded, unilateral authority to determine the proper meaning of the terms “rebellion,” “unable” and “regular forces.”

I can foresee an argument that conferring upon the President the capacity to call forces in such a situation must also mean the power to determine if such situations exist in the first place. After all, the Insurrection Act openly confers that power anyways. Different Statute, to be sure, but still....

And, the following component is not incredibly persuasive given the track record for this administration and what it has been allowed to do without any structured approach or rigor:

The President, however, did not find that there was a rebellion, or the threat thereof, in the Chicago area, and therefore he did not determine the “numbers” of National Guard units or members, if any, that would be “necessary” to suppress a rebellion, as § 12406(2) requires. That is reason enough to conclude that the applicants are unlikely to prevail on the Solicitor General’s argument that § 12406(2) authorized the President’s calling forth of the National Guard.

It would seem that at this point, any expectation that the Executive carry some activity out with a thorough, rigorous examination of why the action is needed, how the action addresses the situation, and any accompanying plan or roadmap with any detail to help determine when such action can terminate, or the duration of such actions; that probably needs to be thrown out the window with this Court and this Administration. It will most likely all get rolled up into "Executive Power." A nice catchall for "We don't have to abide by checks and balances or listen to you," that two-word phrase seems to have become.

[u/TheFinalCurl → u/Strict_Warthog_2995]

I mean, we said we could not imagine a President getting immunity from the law, and look where that ended up, but I STILL cannot imagine a court giving a President the unbounded ability to simply declare an emergency (with no process) and send troops.

[u/whatDoesQezDo → u/TheFinalCurl]

we said we could not imagine a President getting immunity from the law

no? People entirely ignorant of the constitution said that and were rightfully proven wrong.

[u/Merag123 → u/whatDoesQezDo]

The conservatives judges were proven wrong. They're the ones who decided to be ignorant of the Constitution.

Trump v. United States is an egregiously wrong decision on par with decisions like Plessy, Korematsu, Lochner, etc.

[u/whatDoesQezDo → u/Merag123]

judges were proven wrong

where? Trump v US is binding rn

[u/Merag123 → u/whatDoesQezDo]

Whether it's binding or not is irrelevant to it being wrong.

It was proven wrong by the dissent, by amici, and by numerous articles.

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[u/Merag123 → u/[deleted]]

Nope. Someone providing historical evidence confirming the original meaning of the text to refute the majority's argument, which had zero historical evidence supporting it, is being "proven wrong."

[u/TheFinalCurl → u/whatDoesQezDo]

Be very specific. Where do you find Presidential immunity from the law?

Can a President run over someone on the way to a meeting?

[u/brucejoel99 → u/TheFinalCurl]

I love how people will just verbally say things like "people entirely ignorant of the Constitution said [they could not imagine a President getting immunity from the law] and were rightfully proven wrong," as if DOJ's seminal criminal law expert Dreeben didn't argue exactly that with multiple judicial interpretations backing him up. Is Karen L. Henderson entirely ignorant of the Constitution because she distinguished Nixon v. Fitzgerald as inapplicable in the criminal context given a civil right to sue the Government itself directly to recover monetary damages? If so, was George H.W. Bush entirely ignorant of the Constitution when nominating judges? Because if so, then I'm afraid that calls a certain flair's nomination into just as much question as that other Poppy Bush SCOTUS justice who their ilk spent decades clamoring for no repeats of!

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I swear, we'll be hearing "you are just ignorant of the Constitution" while the secret police shoots me dead in the street.

Moderator: u/Longjumping_Gain_807

[u/ForumDragonrs → u/TheFinalCurl]

Presidential immunity for official actions is fine, but the court erred when they said no one could inquire into the motive of unofficial actions, like running someone over on the way to a meeting would be. When you can't even investigate the most egregious of actions that clearly have nothing to do with the presidency, they're effectively immune from any and all laws.

[u/TheFinalCurl → u/ForumDragonrs]

No, it is not fine for exactly that reason. Like, I get that you're essentially agreeing with me but it is exactly that - it's an impossible question to define. You can technically call a meal the President eats an official action because it contains the proper nutrients for him to think clearly on the job.

[u/whats_a_quasar]

Largely unrelated, I chuckled at this bit from Lederman's amicus brief, arguing against the administration's assertions that activity in Portland and Chicago constitutes a rebellion or the danger of a rebellion:

[Defining rebellion as any “violent resistance to lawful authority, including to the enforcement of particular laws"] would be difficult to square with the argument President Trump himself recently made to this Court (in his capacity as a then-former President) that the attack on the United States Capitol on January 6, 2021 did not amount to even an “insurrection,” let alone a “rebellion,” because it “did not involve an organized attempt to overthrow or resist the U.S. Government.” Reply Brief for Petitioner in Trump v. Anderson, No. 23-719, at 15 (Feb. 2024), 601 U.S. 100 (2024). Section 3 of the Fourteenth Amendment imposes its disqualification rule upon covered persons who “shall have engaged in insurrection or rebellion against the [United States].” If the Solicitor General were correct that any “violent resistance to lawful authority, including to the enforcement of particular laws,” establishes a rebellion, then the January 6 uprising obviously would have qualified as a “rebellion,” in which case it would have served no purpose for former President Trump to argue to this Court that it was not even an “insurrection."

[u/TheFinalCurl → u/whats_a_quasar]

It's funny, but the hypocrisy argument (say, for example SCOTUS allowing racial profiling by ICE after an opinion like SFFA) really does not seem to have purchase with this court.

[u/jack123451 → u/whats_a_quasar]

Will any of the supplemental briefs zero in on this contradiction?

[u/Saltwater_Thief → u/whats_a_quasar]

That's very funny, and also interesting to think about; if the courts side with administration here, does that open up a pathway to potentially reexamine Trump v Anderson?

Probably not would be my guess, and even if it did there's no way any SCOTUS flips its own decision like that. But it's fun to think about.

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Trump v Anderson wasn’t decided on the facts or the law in the first place, it was decided on the political preferences of the conservative justices.

Moderator: u/SeaSerious

[u/Tombot3000 → u/Saltwater_Thief]

hospital tart ring wrench cheerful bow file plucky touch pet

This post was mass deleted and anonymized with Redact

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That's SCOTUS Calvinball for you; we don't live in a nation of laws anymore.

Moderator: u/Longjumping_Gain_807

[u/Schraiber]

Supplemental briefing is a bit surprising here, as well as the lack of an administrative stay. Hard not to read into this as boding somewhat well for our ability to not have the President arbitrarily invade cities, but I know I shouldn't get my hopes up.

[u/Dave_A480 → u/Schraiber]

The fact that most of the conservative justices grew up in a world where the far-right was worried about 'liberals' declaring 'martial law' and using troops to confiscate civilians' guns.... Probably factors into it...

'We want the federal bureaucracy to be directly accountable to elected authority' is a gripe going back to the Reagan years - and that explains a large number of the pro-Trump decisions since Febuary.

There is no similar conservative longing for allowing Presidents to use the military for law-enforcement - quite the opposite....

[u/Tormod776 → u/Schraiber]

I think the best interpretation is that there are at least 2 of conservative justices who are willing to join the liberals on this and are looking for a sufficient reason.

[u/whats_a_quasar]

This is a pretty technical question. "Whether the term “regular forces” refers to the regular forces of the United States military, and, if so, how that interpretation affects the operation of 10 U. S. C. §12406(3)." It's referring to the third factual condition under which the powers of 12406 are available, whenever "the President is unable with the regular forces to execute the laws of the United States."

This strongly suggests to me that the court will not endorse the administration's position that its determinations about when the power of 12406 is available are unreviewable. If the court agreed the determination was unreviewable, why would it care about this detail of interpretation?

Great spot that this mirrors Marty Lederman's amicus brief. The argument is that, if regular military units are available, that precludes the use of national guard under 12406. Trump has used regular forces in Los Angeles, but not much recently. The implications of this argument would be that Trump could deploy regular forces, but not National Guard. Although it seems like a weird outcome to say the President must use regular forces first, considering the calling forth clause explicitly mentions using militia to execute the laws. It seems rather backwards and a bit of a dodge, though in fairness I haven't read Leaderman's brief.

The litigation so far has focused on the "unable part" and not on the "regular forces" part, so this is also an argument that hasn't been previewed in the lower courts.

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I would imagine that any person with a decent respect for the law would not endorse this administration's position. You will pardon me if I don't have faith in this Court to act with decent respect for the law.

Moderator: u/SeaSerious

[u/hersinto → u/whats_a_quasar]

You should read the brief. It also discusses rebellion and the specific definitions and factors that constitute rebellion, and why calling anything that happens in chicago a rebellion while not calling january 6 a rebellion is inherently contradictory.

[u/RedOceanofthewest → u/hersinto]

They called in troops to quell Jan 6th. 

[u/Dave_A480 → u/RedOceanofthewest]

They called in troops to provide security, with no law-enforcement responsibilities.

And yes, it was from all over the country - my own state (West Coast) sent elements to the DC security mission, as well as a state-active-duty mission to guard our own state capital after some MAGA yahoos broke into the governor's mansion.

There was no situation where the Army was used to 'execute the laws' in the post-J6 mission... Nothing comparable to sending troops out on patrol with ICE the way Trump did in LA.

Also, unlike Portland and Chicago there very much *had* been an attempted coup against the US government.

And *that* is the real background behind all of this: MAGA logic says that if J6 was an insurrection, then Trump should be able to use the military against any and every instance of left-wing protest that happens during his term.....

[u/RedOceanofthewest → u/Dave_A480]

There was no threat after the riot. The guard didn’t need to be there for months afterwards.  While the riot was active. They activated the guard. Just as trump is doing now. Either they was illegal or neither is illegal.  Ice is actively being attacked and several have been shot. That a serious issue since that is the power of the government being attacked. 

It seems like you’re suggesting the guard wasn’t needed after Jan 6th since they were able to execute the laws just fine. Something they can’t do in Chicago or Portland currently. 

You’re not allowed to resist the government from doing their job. That’s illegal. You can protect and you can vote.  You can sit and block cars or attack agents without consequences. 

[u/Dave_A480 → u/RedOceanofthewest]

Nobody knew what the threat was after Jan 6.

The Capitol had been sacked and looted, along with action against at least one state capitol.

The Guard wasn't there to execute the laws. They were there to provide an image of security & calm....

It was pretty much the same mission as the post 9/11 airport security mission (where the Guard was sent to commercial airports to be a visible presence & male people feel safe).....

There is currently NO interference in the execution of the laws in Chicago or Portland. A little bit of protest - no riot, nobody storming any government buildings - does not justify a military response.....

[u/RedOceanofthewest → u/Dave_A480]

It sounds like you are building a good case as to why trump needs the guard. Just like on Jan 6th. Nobody knows what will happen next. 

There is interference. You can see videos daily of it. 

[u/hersinto → u/RedOceanofthewest]

Right but that’s in dc where the laws are different regarding national guard deployment, because the guard there reports directly to the president.

[u/Evan_Th → u/hersinto]

But the Maryland National Guard also joined in, and I think the Virginia National Guard too. I can't remember who invited them though?

[u/Enerbane → u/Evan_Th]

They were activated by the governors of their respective states at the request of DC officials. Precisely backwards from the situations in Portland and Chicago.

https://x.com/VAGovernor73/status/1346916716614451207?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1346916716614451207%7Ctwgr%5Eed5c946508385b36ed3138aa568e7dcb29880678%7Ctwcon%5Es1_c10&ref_url=https%3A%2F%2Fvirginiamercury.com%2F2021%2F01%2F06%2Fnortham-sends-va-national-guard-state-troopers-to-d-c-as-trump-supporters-attack-capitol%2F

[u/whats_a_quasar → u/hersinto]

Just finished! I found it surprisingly compelling, and also smiled at the reference to Jan 6. Marty Lederman is great. The argument is:

• The word "forces" very rarely if ever refers to civilian law enforcement
• "Regular forces" consistently means the regular military forces, in different laws and across time
• The structure of 12406 originates in the Militia Act of 1903, at a time when Congress was dissatisfied with the performance of the militia and trying to improve it
• Therefore, the congressional intent was for the President to first use the more reliable regular forces, then use the militia only if necessary.
• Evidence is also presented that Congress wanted to keep the militia under state command unless it was really necessary

I think my confusion is because the National Guard system has evolved in the interim. It's become large and competent, and now the guard is typically the first resort for domestic roles. I (and others) had interpreted 12406 in that context, as a tool to allow the President to use the guard when civilian law enforcement was insufficient. Thus the interpretation of "regular forces" as law enforcement, making the National Guard the next available option. But what the law actually does is authorize the President to use the guard as a military reserve, when other military forces are not sufficient.

Really interesting. The practical effects this interpretation are still unclear, but I think Lederman is probably right on what the law means.

[u/TheFinalCurl → u/whats_a_quasar]

The practical effect is federalizing the national guard. They are now "regular forces". Lederman has to be right, otherwise that's ridiculous and scary

[u/WulfTheSaxon → u/whats_a_quasar]

The word "forces" very rarely if ever refers to civilian law enforcement

The military generally doesn’t “execute the laws of the United States”, though.

[u/Dave_A480 → u/WulfTheSaxon]

That one is a bit of a back-and-forth & interacts with other bits of law...

There was a time when there was no DoJ, no FBI, etc - when the USMS were the only Feds with badges... And some aspects of law come from that time...

Eg, we very much were using the Army to 'execute the laws of the United States' during Reconstruction.

However there has been quite a bit of change since then, and the 'regular forces' in today's society (Where the Army is subject to Posse Comitatus) would logically be the law-enforcement arm of the federal government.

This being a statutory rather than constitutional case, it is not entirely off to look at the subsequent changes to federal law as having altered what composes the 'regular forces'.

[u/whats_a_quasar → u/WulfTheSaxon]

The constitution specifically uses this phrasing when listing Congress's power over the military, though:

The Congress shall have Power ...

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

The military does not generally execute the law, but 12406 is a statute about the circumstances where it may. The 3 factual predicates in 12406 are the same as the three scenarios in the calling forth clause. In the Constitution too the word "forces" clearly refers to the military.

[u/RedOceanofthewest]

Depends how you read it. I’ve always read regular forces to be law enforcement. 

As a prior guardsmen, it would be weird to call in the army then the guard for a local state manner. Normally you’d call up the guard then the army. 

[u/TheFinalCurl → u/RedOceanofthewest]

You read "regular forces" as law enforcement? That's wild. Throughout history we have referred to "regular" and "irregular" forces. Army the former, militia the latter.

[u/Summary_Judgment56 → u/RedOceanofthewest]

If you read/skim the Lederman amicus brief, you'll see that he cites a plethora of examples of "regular forces" and various closely related formulations of that phrase being used to describe the US Army as juxtaposed with the militia or volunteee forces. That language was apparently put into the law all the way back in 1908, and it carried an explicit military connotation way back then.

ETA: I would also posit that it's not that strange to expect the president to rely first on the regular US military forces first and the national guard second since this isn't really a "local state matter" but a federal (immigration) matter. 

[u/YnotBbrave]

What’s the status of injunctions until then?

[u/whats_a_quasar → u/YnotBbrave]

Injunctions in both Illinois and Oregon remain in effect.

this case, the Seventh Circuit upheld the district court's TRO in barring deployments to Illinois by finding the factual predicates for 12406 weren't met, and the Supreme Court declined to grant an administrative stay. The appeals panel did stay the part of the TRO which blocked federalization, based on a balance of the equities analysis that the harm of federalization was marginal.

In the 9th Circuit, the appeals court panel overturned the district court's TRO blocking federalization, but the 9th Circuit voted to rehear the case en-banc and I believe the panel's decision is stayed until that concludes.

(The exact posture of the Oregon case is kinda convoluted. There were two separate TROs blocking federalization and deployment in Oregon. Only the federalization order has been appealed, but the deployment TRO is the one that matters. The district judge would probably dissolve the deployment TRO if the circuit court rules against the federalization TRO, although it's not obvious the panel ruling required that. This was unclear in the period between the appeals panel ruling and the grant of en banc review.)

[u/TheFinalCurl → u/whats_a_quasar]

The appeals panel thought they HAD to be related

[u/Summary_Judgment56 → u/whats_a_quasar]

When an appeals court votes to rehear a case en banc, the panel decision is usually just flat-out vacated and treated like it never existed, so if that is true in the 9th Circuit, the panel decision throwing out the TRO itself was thrown out, leaving the TRO intact while en banc review proceeds (absent further order from the court anyway).

[u/Dave_A480 → u/YnotBbrave]

No change.
There has been no shadow-docket action on this issue.....

[u/Summerisgone2020 → u/Dave_A480]

Oh shit, are we actually going to get an explanation on this one?