SUPREME COURT TEMPORARILY SAYS “NO” TO NATIONAL GUARD DEPLOYMENT IN ILLINOIS!
I’m so sorry that I wasn’t able to get this out to you yesterday, Epstein has kept me *very* busy! But as I briefly told you yesterday, the Supreme Court smacked down Trump’s appeal of the lower court ruling saying that he could not deploy the National Guard in Illinois.
Now here’s the full story.
You remember that lower court ruling, it’s the one in which Judge Breyer and the government’s lawyer had this exchange:
THE COURT: And today, I want to know today, even though you say it’s irrelevant. Is there a danger of a rebellion today?
MR. HAMILTON: There is a danger of a rebellion today.
THE COURT: Okay. Well, I’ll be careful.
(That *still* makes me chortle out loud!)
You may also recall that much of the government’s argument was founded in their assertion that the federalization and deployment of the National Guard was allowed under 10 U. S. C. §12406(3) of the Federal law. This law allows the president to federalize and deploy National Guard troops if (and *only* if) he is unable to “execute the laws of the United States” with, and this is important, “regular forces”.
Attendant to this, there have been at least two lines of inquiry and argument:
1. Just what exactly are “regular forces”?, and
2. Is he unable to execute the law with “regular forces”, whatever they are?
Additionally, another section of that law authorizes the president to federalize and deploy the National Guard if there is an invasion or a rebellion. *This* is why you see Mr. Hamilton arguing that there is rebellion, in case the whole the “unable to execute the law” argument doesn’t work.
(Note: This is why you will often see cases being argued “if not A, then, in the alternative, B”. In other words, throw whatever you can in there and hope one or the other of it will stick.)
Well, as you know (because I told you when it happened, and Notes from the Front members received the entire transcript of the hearing), the lower court said “No way to any of it”, put a stay in place saying that Trump could *not* deploy the National Guard in Illinois, and Trump appealed to the emergency docket of the Supreme Court, asking them to remove the stay.
In a move that I’m sure had many at 1600 Pennsylvania Avenue shocked, and one particular resident apoplectic, the Supreme Court was having none of it.
*Even though* this was *not* the Supremes actually reviewing the case on the merits yet, and *even though* it was just a ruling on the emergency docket looking for an emergency *procedural* action (“Make the mean judge in the mean lower court stop picking on me”), the Supremes issued a *25* page opinion (18 pages of which are the dissent from the three dissenting justices, Alito, Thomas, and Gorsuch).
The full 25-page opinion is included for Notes from the Front members, but here’s the gist of it:
“We conclude that the term “regular forces” in §12406(3) likely refers to the regular forces of the United States military. This interpretation means that 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.” 18 U. S. C. §1385. So before the President can federalize the Guard under §12406(3), he likely must have statutory or constitutional authority to execute the laws with the regular military and must be “unable” with those forces to perform that function.
At this preliminary stage, the Government has failed to identify a source of authority that would allow the military to execute the laws in Illinois.”
In other words “You have provided *no* actual legitimate proof for anything in the law saying that you have this authority, and the “because I said so” argument doesn’t work.”
Notes from the Front members: the full Supreme Court opinion is in your inbox.
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https://annepmitchell.substack.com/p/supreme-court-temporarily-says-no
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