At his substack Executive Functions, Jack Goldsmith: Thoughts on the Interim Order in Trump v. Illinois – The administration loses but still has options for domestic military deployment. From the introduction:
President Trump federalized the Illinois and Texas National Guard to protect federal personnel and property in and around Chicago. He relied on 10 U.S.C. § 12406(3), which authorizes Guard federalization if the president is “unable with the regular forces to execute the laws of the United States.” A federal district court enjoined the deployment, which the Supreme Court yesterday declined to stay.
The Court ruled that the term “regular forces” in § 12406(3) likely refers to the regular military. To call into service the Guard under § 12406(3), therefore, the president must show that he is “‘unable’ with the regular military” to execute U.S. law. Justice Kavanaugh noted in concurrence that this ruling might have sufficed to deny the stay since Trump made no such determination.
But the Court went further. It reasoned that because the Posse Comitatus Act bars military law enforcement absent express authorization, the president must identify a statutory or constitutional authority for the regular military to execute the laws—and then show inability to do so—before federalizing the Guard under § 12406(3). The government’s failure to meet that burden, the Court said, justified denying the stay.
Some thoughts on the decision, ordered from the particular and narrow to the broader implications for domestic military deployment …
And from later on:
Because the Court’s interim orders have vertical precedential effect, yesterday’s order should end the government’s § 12406(3) National Guard call-up not just in Illinois but in California and Oregon too. In that sense it is a major defeat for the Trump administration. But yesterday’s decision does not mean that Trump is out of options for domestic military deployment. Rather, as I wrote in October, he “has other more powerful legal authorities to deploy the Guard and regular armed forces in the domestic sphere”—options that the Court in yesterday’s order left open.
One option, I wrote earlier, is the “protective power”:
The protective power is the president’s inherent or independent Article II power to protect federal personnel, property, and functions. The key point is that the president can assert the protective power without reliance on Section 12406. He can deploy regular armed forces without any need to federalize the Guard. Presidents often have.
William Rehnquist, then head of the Office of Legal Counsel, wrote the leading executive branch opinion on the protective power in 1971. As Chris Mirasola explains in his outstanding definitive treatment of the issue, the protective power has a long pedigree in practice but an uncertain basis in Article II and Supreme Court case law. If the president relied on Article II alone to use regular armed forces for the protective function, it is hard to know what the Supreme Court would say about its validity or about the deference due to the president.
The Court discussed the protective power in yesterday’s order but did not take a view on it. If the government calls out the regular military to perform protective functions, we might get a first-ever Supreme Court ruling—at least since the nineteenth century decisions on which the government has long but precariously relied—on the nature and scope of the protective power.
A second and seemingly stronger option for Trump is to invoke the Insurrection Act, which authorizes the president to use the National Guard or the regular military in the domestic sphere in wide-ranging contexts, including (simplifying a great deal) as the president “considers necessary” to enforce federal law against unlawful “obstructions,” “combinations” or “assemblages” or to quell any “domestic violence” or “conspiracy” that impedes the enforcement of constitutional rights or even “the course of justice” under federal law.
(Via How Appealing.)
RELATED: Josh Blackman is sharply critical of the Court’s order here.
I haven’t studied the context of § 12406 enough to have a definite view of its original meaning. But it seems somewhat counterintuitive to suppose that Congress wanted the President to use the military as a first resort in situations of breakdown of internal order, and use the National Guard only as a last-resort backup. Indeed, it seems (to me, anyway) that the exact opposite would be more likely — the military is principally for outward-facing national defense, and one would not want to rely on it for internal law enforcement unless absolutely necessary. Using the Guard to back up civilian law enforcement where needed seems more sensible, as that wouldn’t detract from the military’s primary role in national defense.
It also doesn’t seem to me that the statute’s text in itself compels the Court’s result. It says the President can call the Guard when “the President is unable with the regular forces to execute the laws of the United States.” I think “regular forces” in that context could mean “the forces regularly used to execute the laws” — that is, federal civilian law enforcement. It’s true, though, that the military is often called the “regular military” as opposed to the militia/National Guard, so perhaps the Court’s reading is correct, even if it produces an odd result.
Posted at 6:02 AM