176. Illinois v. Texas

A quick look at President Trump's (apparent) plan to send uninvited and un-federalized Texas National Guard troops into Illinois—and how it could (and maybe should) quickly end up in the Supreme Court

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I wanted to put out a quick issue tonight in response to Illinois Governor J.B. Pritzker’s announcement earlier today that President Trump is apparently contemplating the use of un-federalized Texas National Guard troops to do … something … in and around Chicago in the coming days or weeks.

There’s a lot of fear-mongering and mis- (or dis-)information out there, so I thought I’d write something that briefly (1) flags the relevant statutory authority; (2) explains the two (and a half) reasons why Illinois would (and will) have some pretty darn good arguments against that statute being lawfully invoked here; and (3) suggests that Illinois might be well-served by taking the extraordinary step of seeking relief directly from the Supreme Court by invoking the Court’s obscure but very real “original” (and exclusive) jurisdiction in disputes between two or more states.

I. The Relevant Statute: 32 U.S.C. § 502(f)(2)

The statute President Trump is (or would apparently be) relying upon is an obscure provision Congress enacted in 2006, codified at 32 U.S.C. § 502(f)(2). In a nutshell, that provision authorizes the use of un-federalized National Guard troops in “[s]upport of operations or missions undertaken by the member’s unit at the request of the President or Secretary of Defense.” (National Guard troops wear three hats: Their “state active-duty” hat, when they’re solely under state control; their “Title 10” hat, when they are federalized; and the in-between “Title 32” hat, when they’re still under state control but performing federal training or other missions. This is the last one.)

In other words, the provision authorizes the President or Secretary of Defense to request (not require) governors to volunteer members of their National Guards, again, without those troops being federalized, to support federal missions. When utilized under § 502(f)(2), National Guard troops remain nominally under state control, which, among other things, means they’re not subject to the Posse Comitatus Act, which prohibits use of the federal military for domestic law enforcement, but not anybody else. (For those who would like more background on the Posse Comitatus Act and broader debates over the domestic use of the military, here’s my primer from April.)

Although § 502(f)(2) has been used for various federal missions over the years, it didn’t become a source of controversy until 2020—when President Trump relied upon it to solicit governors to send members of their National Guards to Washington, D.C., after and in response to the George Floyd-related protests. Critically, unlike the prior uses of § 502(f)(2), this one came over the express objection of the local authorities where the out-of-state troops were sent, i.e., the Mayor of the District of Columbia. But that use quickly ended—and never produced meaningful litigation over the scope and limits of § 502(f)(2).

I wrote a long piece about the 2020 episode back when it happened—and said this at the end: “[I]t’s not just that this use of § 502(f) somehow allowed the federal government to exercise command and control over state National Guard troops in Title 32 status; it’s that it was overwhelmingly troops from red states—those who wanted to support the president’s politically controversial mission—not blue states. It shouldn’t take much to see why that’s an ominous precedent to set.”

Well, here we are. And the question that the 2020 D.C. deployment raised but didn’t answer is whether there are viable legal objections to this kind of use of § 502(f)(2).

II. The Legal Arguments Against Using § 502(f)(2) Without Bilateral Consent

In my view, there are two direct objections, and one indirect one.

Taking the direct objections first, let’s start with the constitutional argument—i.e., that the deployment of one state’s (un-federalized) National Guard troops into another state without the latter state’s consent violates Article IV.

Specifically, Article IV, Section 4 of the Constitution provides as follows:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

As the clause after the semicolon suggests, there is a role for state consent when out-of-state troops are being used in response to “domestic violence” (as opposed to “invasion”). And although my own view is that state consent is not a prerequisite to the use of federal troops in their federal capacity, it is more than a little difficult to think that the Founders would ever have consented to a Constitution under which one state could send its un-federalized militia into another state without the latter state’s consent.

Thus, it seems to me that there’s a strong (if novel) argument that § 502(f)(2) would violate Article IV of the Constitution insofar as it allowed for the deployment of un-federalized out-of-state National Guard troops into a state that didn’t want the troops there. (This argument would not have been available to the District of Columbia in 2020, since D.C. is not a state.) To be sure, there’s no on-point precedent here. But that seems just as powerful an argument against this being constitutional as for it being so.

The second argument is narrower. Texas and Illinois are both parties to the Emergency Management Assistance Compact (EMAC)—an interstate compact ratified by Congress in 1996. EMAC includes a number of provisions through which states have committed to assisting each other during domestic emergencies, including “the use of the states’ National Guard forces, either in accordance with the National Guard Mutual Assistance Compact or by mutual agreement between states.” Neither Illinois nor Texas is a party to the National Guard Mutual Assistance Compact, but the more important point is that EMAC is predicated on “mutual agreement between states.” There certainly seems like a decent argument that § 502(f)(2) should not be read to conflict with EMAC’s “mutual agreement” requirement—especially when the statute can easily be read to be consistent with the compact (by requiring consent of the receiving state). Of course, one might counter that this would effectively give governors a veto over uses of un-federalized out-of-state troops for federal missions in their states. But that seems like a feature, not a bug—especially if one reads Article IV the way that I do.

Neither of these arguments is a slam-dunk, at least in part because, frankly, we’ve never had a President who thought it was a good idea to try to pull a stunt like this (or, at the very least, who didn’t face insurmountable political obstacles to attempting to do so). But my own view, having spent a lot of time looking at Founding-era materials on domestic uses of the military, is that a Constitution that authorized what Trump is apparently contemplating would never have been ratified by states that were already suspicious of giving away too much control over their own affairs. Indeed, the legislative debates over the early statutes authorizing domestic use of the federalized militia to execute the laws of the union were replete with concerns that using out-of-state troops was abusive—so much so that the early statutes included significant procedural checks on when those troops could be used even when called to federal service.

To be clear (and here comes the half argument), this doesn’t leave the federal government powerless to use troops in response to domestic disorders. To the contrary, I am firmly of the view (which some scholars don’t support) that Congress has the constitutional authority to allow for domestic use of federal troops even in states in which the Governor objects—something it has provided for, e.g., in a key provision of the Insurrection Act. (If this sounds ominous, consider that this was the authority that multiple presidents relied upon to use federal troops to enforce school desegregation orders over the objections of local and state officials.) If the situation in Chicago is sufficiently serious so as to warrant the use of military force not controlled by the Governor of Illinois, both the Constitution and statutes that date back to 1792 provide the President with a means of responding—one that has been used numerous times over our nation’s history.

But that’s exactly the point: The Constitution allows for federal troops to be used in states over that state’s objections (in limited circumstances). It does not, and should not be read to, allow for out-of-state troops that haven’t been federalized to do so. Yes, 32 U.S.C. § 502(f)(2) is a federal statute. But I have a hard time imagining that even the current Supreme Court would be in any hurry to hold that Congress has the power to authorize such horizontal violations of state sovereignty—especially when Congress has given the President plenty of other power to respond to comparable (or far more serious) domestic disturbances. That the President, for whatever reason, doesn’t want to invoke that power is another matter.

III. Illinois’s Options

This leads to the last, and nerdiest, point: Suppose the legal objections are at the very least colorable, then what?

Illinois could, quite obviously, challenge President Trump’s use of § 502(f)(2). Such a lawsuit, in my view, would best be brought against the Secretary of Defense (given questions about whether the President can be directly enjoined by a federal court), and would presumably be appropriately filed in a federal district court in Illinois (indeed, in Chicago, specifically). Earlier today, we saw Judge Breyer in California hold that the Trump administration had violated the Posse Comitatus Act through some of its military deployments in and around Los Angeles. That case raised different questions, of course. But Judge Breyer’s ruling is a useful rejoinder to the idea that federal courts are powerless to halt domestic deployments of federal troops.

But it’s worth contemplating another possibility: That Illinois might sue Texas—invoking the Supreme Court’s “original” (and exclusive) jurisdiction in suits between two or more states under 28 U.S.C. § 1251(a). Even though it’s President Trump who is “requesting” troops under 32 U.S.C. § 502(f)(2), it’s Texas that is choosing to send them—and, thus, Texas that is arguably violating both Illinois’s constitutional sovereignty and EMAC. And although the Supreme Court typically moves slowly in considering cases on its original docket, there’s at least one recent example of the plaintiff state seeking—and obtaining—a preliminary injunction while that case unfolded.

Regular readers of this newsletter will know that I’m usually fairly skeptical of the Supreme Court’s original jurisdiction. The justices don’t especially like to utilize it, and they certainly prefer to let high-profile disputes work their way through the lower courts when possible. But here we have a head-on, state-vs.-state dispute where the real issue is that of one state violating the sovereignty of another—the exact kind of dispute for which the Court’s original jurisdiction was intended. It would also avoid the specter of a district court ruling followed by an emergency application to the Seventh Circuit followed by an emergency application to the Supreme Court; the justices could quickly at least freeze the status quo they prefer while the legal issues get sorted.

At the very least, it’s something I hope folks in Illinois are thinking seriously about. Because I fear that what was a hypothetical concern back in 2020 may be on the verge of becoming very real.

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We’ll be back (no later than) Thursday with this week’s bonus issue—and next Monday with our regular coverage of the Supreme Court. I hope you found this extra issue of “One First” useful. And if you’re not already a subscriber, I hope you’ll consider becoming one:

Stay safe out there, all.