At Civitas Outlook, Robert G. Natelson: The Constitution and the National Guard. From the introduction:
How extensive is the President’s power to deploy state units of the National Guard for federal law enforcement?
On June 19, the United States Court of Appeals for the Ninth Circuit ruled in Newsom v. Trump that the President could deploy the Guard to protect federal property in Los Angeles. On October 4, a federal district judge ruled in Oregon v. Trump that the President could not use the Oregon National Guard for the same purpose in Portland.
The term “National Guard” is somewhat misleading. There is a different national guard in every state. Each is governed largely by state law, and the governor is its commander-in-chief. Historically, a state’s national guard was referred to as its “militia” — and the Constitution uses that term.
From the point of view of a Trump administration lawyer, both the Newsom and Oregon cases are questionable. Even though the Newsom court ultimately ruled for the President, it failed to abide by a longstanding Supreme Court precedent holding that the chief executive alone has discretion to determine the scope of his deployment authority. On different facts, the Oregon court also disregarded this precedent to rule against the administration.
Both cases support the view that there is a judicial double standard — a forgiving one for other chief executives, and a much more demanding one for President Trump.
Yet if we follow the Constitution, it may well be that the outcomes (although not all the reasoning) of both cases are correct. To understand why, we must review the Constitution’s militia rules and examine why the federal government is out of compliance with them….
And in conclusion:
This area of the law should be overhauled to better conform to the Constitution. If either of these cases arrives at the Supreme Court, the justices should begin the job.
First, they should clarify that federal use of state militia units is limited to the three cases enumerated in the Constitution, and that neither the Armies Clause nor the “dual enlistment” system can be used to circumvent those limits.
Second, the court should uphold the validity of 10 U.S.C. § 12406 as a valid exercise of the Calling Forth Clause.
Third, it should clarify that, because there is nothing in the Constitution to suggest that presidential militia decisions are non-justiciable, the holding in Martin should be limited to its facts. That is, the ruling should apply to militiamen, but not to responsible state functionaries.
Fourth, because military and law enforcement decisions are primarily entrusted to the executive branch, the part of the non-justiciability rule now applying to responsible state officials should be replaced with one merely granting deference to the President. For that purpose, perhaps, the “colorable” formula adopted in Newsom and Oregon might be an appropriate substitute.
But that standard should apply to all chief executives, not just President Trump.
(Thanks to Andrew Hyman for the pointer.)
Posted at 6:29 AM