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
Seems like a great way to start Civil War II. If SCOTUS allows this, they will have not only blessed an interstate conflict but, at the same time, rendered meaningless the federal nature of our government AND sawed off the very limb upon which they sit. The regime's attack on our Constitution will be complete...no states rights, presidential criminal immunity, no habeas corpus, questionable vote.
My expectation is that SCOTUS—with Roberts writing a muddled majority opinion in which four others concur in the result, but not in the reasoning—will find a way to let Trump “do whatever he wants. “
The Roberts opinion will probably do a reasonable job of assessing what facts must exist as the predicate to justify use of the National Guard. But then Roberts will confirm his judicial self-castration by ruling that, because courts are especially poorly positioned in these types of matters to assess the facts on the ground and the types of forces suitable or necessary to respond to the exigencies those facts create, courts must very broadly defer to the executive’s assessment as to such facts.
To appear not to have given away the whole farm, Roberts will craft a narrow and confusing exception to his principle of extreme judicial deference to the executive’s factual determinations, but Roberts’ exceptions to the exception will make the exception the jurisprudential equivalent of a point in geometry: “An abstract concept representing an exact location in space that has no size, length, width, or depth, i.e., a zero-dimensional object.”
Roberts will be loathe to allow courts to indulge in more than a cursory examination of the facts when the executive has declared the existence of a hard-pressing emergency. That cursory examination will consist almost entirely of looking at the government’s pleadings to see if the government has asserted a sufficient factual predicate. SCOTUS will reject all consideration of the government’s contrary out-of-court statements, and will discount contrary factual evidence from non-government sources. Government expertise will be judged inherently superior to the experts opinion of serious, experienced persons outside government. Access to discovery from government will be disallowed as intrusive. By allowing Trump to establish the decisive facts merely by asserting specious facts without meaningful judicial review of government assertions, SCOTUS will allow Trump to invent whatever facts will trigger authority for the power he wants to grab.
The upshot of Roberts’ opinion will be an instruction to Trump that he must “lie well,” which Trump can eventually do, although it might take Trump’s lawyers a couple of tries to fashion a lie that satisfies Roberts’ delicate judicial sensibilities as to what constitutes a sufficient factual predicate.
How many times must I say it: SCOTUS will not save us!
I am sincerely sorry to say that at this point scholarly legal analysis imagining the ways SCOTUS (if it even wanted to) might or might not take a step to save our Constitutional Republic is just a lot of legal thumb-twiddling that distracts us from the now-crucial business of figuring out what “We, The People,” must do to save our Constitutional Republic for ourselves.
It sucks that Roberts refuses to find a way for the Constitution to do the primary thing it was written to do, which is to ensure self-government of We, The People; due process; and the rule of law by protecting us from a tyrant seeking to gather all power to himself. If Roberts’ SCOTUS can’t do that, then I don’t know what its purpose is.
Trump’s strategy is to terrify SCOTUS with the threat of going nuclear and invoking the Insurrection Act. Trump hopes that his threat to invoke the Insurrection Act will frighten SCOTUS into being more likely to approve any unconstitutional Trump power grab that stops short of invoking the Insurrection Act. In other words, this SCOTUS will let Trump take another small bite of power in the hopes Trump will be satisfied with that small bite, and won’t take the big bite by invoking the Insurrection Act. But SCOTUS doesn’t understand that letting Trump take a small bite of unconstitutional power will not appease him, but will embolden him to take a bigger bite.
I don't think Trump needs to terrify SCOTUS. I think there are 5 votes in the bag for the Federalist Society, aka modern Royalists/Tories. I think Barret wavers at times between her patronage and her realization of the larger plan at work. I think we are seeing the consequence of Grant's "genteel gentleman's surrender" given to Lee rather than ordering a complete, total, and unconditional surrender.
What happens if Illinois arrests the Texans kidnapping Illinois residents? What happens if, hopefully not, someone "stands their ground" against Texans with guns threatening them? The entire reason to federalize National Guard units is to grant them federal authority to supersede state authority.
If all else fails, could Illinois actually request assistance, in the form of blue state national guard, to deal with an unwanted and unasked for redstate national guard invasion?
THIS is THE question. He should do it now and let's just get this over with. Simultaneously cut off the new Confederacy's welfare money by withholding urban/suburban and blue state subsidizing of red states and rural CSA funding. Let them pay their own way for a change.
New Mexico and Colorado Guard can sweep into Austin, round up the governor and friends and fly them to Mexico City to discuss emplacing razor-wire in the Rio Grande. I'm not sure that got the bi-lateral discussion it deserved.
Thank you for this explanation. I have faith in Pritzker and our AG Raoul to fight back efficiently, and although I no longer have faith in SCOTUS to check the orange Mussolini, they may check Abbott at the prospect of civil war.
Steve, this is great, but I think it might be helpful to explain that the Guard actually wears 4 hats, not just 3. Title 10 contemplates two separate roles for the NG, right? They can be mobilized as a reserve component (National Guard of the United States) or federalized as the organized militia (National Guard). This distinction seems to have gotten lost, but might be important for these domestic deployments. Or did this arrangement change somehow?
I have one question as a layman: If those troops stay unfederalized and unfederalized and therefore under the order of governor Abbott, doesn't that mean that the power of Abbott's orders end at the borders of Texas, whatever Trump writes in those orders (or whoever does it on behalf of Trump)? Wouldn't those Texan troops automatically become ordinary US citizens subjected to Illinois law once entering Illinois?
It certainly seems implausible that the states that ratified the Constitution would have done so if they thought it permitted the administration’s proposal, but Article IV Section 4 seems an alarmingly thin reed to nudge this Supreme Court to the obvious right answer. It suggests your line of reasoning but does not dictate it, as, absent a request from the target state, that state appears merely not guaranteed protection against domestic violence. That is not the same thing as a prohibition on the United States deciding to provide unrequested purported protection. I believe I’ve seen this Supreme Court make a hash out of much more straightforward constitutional provisions than this.
Assuming Trump orders members of the Texas National Guard to Chicago pursuant to 32 USC 502(f)(2), are the members of the Texas Guard ordered to Illinois under the control of the governor of Texas or the governor of Illinois during the time the Texas Guard members are in Illinois?
If these Texas Guard members are under the control of the governor of Texas when in Illinois, can the Texas governor empower members of the Texas Guard to enforce Illinois state law in Illinois?
Since the President’s authority under 32 USC 502(f)(2) is limited to calling a state guard to participate in drill, instruction, training or other duty which may include “support of operations or missions undertaken at the request of the President or Secretary of Defense”, must the “operations or missions” be similar or related to training, instruction, or assemble?
Does the President have the authority to empower Texas National Guard members to enforce Illinois state law while in Illinois to support operations or missions undertaken by the President?
I assume the President has the authority to empower Texas National Guard members to enforce federal law in Illinois but if the President does so, has the President “federalized” the Texas Guard members sent to Illinois to enforce federal law?
Steve Vladeck, you are a hero. Thank you for your legal work. -- Pam in Chicago
I'm holding all you Chicagoans right here in my heart, Pam.
Hold fast.
Another Illinois resident; I’m with you Pamela!
Seems like a great way to start Civil War II. If SCOTUS allows this, they will have not only blessed an interstate conflict but, at the same time, rendered meaningless the federal nature of our government AND sawed off the very limb upon which they sit. The regime's attack on our Constitution will be complete...no states rights, presidential criminal immunity, no habeas corpus, questionable vote.
My expectation is that SCOTUS—with Roberts writing a muddled majority opinion in which four others concur in the result, but not in the reasoning—will find a way to let Trump “do whatever he wants. “
The Roberts opinion will probably do a reasonable job of assessing what facts must exist as the predicate to justify use of the National Guard. But then Roberts will confirm his judicial self-castration by ruling that, because courts are especially poorly positioned in these types of matters to assess the facts on the ground and the types of forces suitable or necessary to respond to the exigencies those facts create, courts must very broadly defer to the executive’s assessment as to such facts.
To appear not to have given away the whole farm, Roberts will craft a narrow and confusing exception to his principle of extreme judicial deference to the executive’s factual determinations, but Roberts’ exceptions to the exception will make the exception the jurisprudential equivalent of a point in geometry: “An abstract concept representing an exact location in space that has no size, length, width, or depth, i.e., a zero-dimensional object.”
Roberts will be loathe to allow courts to indulge in more than a cursory examination of the facts when the executive has declared the existence of a hard-pressing emergency. That cursory examination will consist almost entirely of looking at the government’s pleadings to see if the government has asserted a sufficient factual predicate. SCOTUS will reject all consideration of the government’s contrary out-of-court statements, and will discount contrary factual evidence from non-government sources. Government expertise will be judged inherently superior to the experts opinion of serious, experienced persons outside government. Access to discovery from government will be disallowed as intrusive. By allowing Trump to establish the decisive facts merely by asserting specious facts without meaningful judicial review of government assertions, SCOTUS will allow Trump to invent whatever facts will trigger authority for the power he wants to grab.
The upshot of Roberts’ opinion will be an instruction to Trump that he must “lie well,” which Trump can eventually do, although it might take Trump’s lawyers a couple of tries to fashion a lie that satisfies Roberts’ delicate judicial sensibilities as to what constitutes a sufficient factual predicate.
How many times must I say it: SCOTUS will not save us!
I am sincerely sorry to say that at this point scholarly legal analysis imagining the ways SCOTUS (if it even wanted to) might or might not take a step to save our Constitutional Republic is just a lot of legal thumb-twiddling that distracts us from the now-crucial business of figuring out what “We, The People,” must do to save our Constitutional Republic for ourselves.
It sucks that Roberts refuses to find a way for the Constitution to do the primary thing it was written to do, which is to ensure self-government of We, The People; due process; and the rule of law by protecting us from a tyrant seeking to gather all power to himself. If Roberts’ SCOTUS can’t do that, then I don’t know what its purpose is.
They did it last year by denying their ability to know what an insurrection is. That's the word in play here.
Ultimately, that is where things are headed.
Trump’s strategy is to terrify SCOTUS with the threat of going nuclear and invoking the Insurrection Act. Trump hopes that his threat to invoke the Insurrection Act will frighten SCOTUS into being more likely to approve any unconstitutional Trump power grab that stops short of invoking the Insurrection Act. In other words, this SCOTUS will let Trump take another small bite of power in the hopes Trump will be satisfied with that small bite, and won’t take the big bite by invoking the Insurrection Act. But SCOTUS doesn’t understand that letting Trump take a small bite of unconstitutional power will not appease him, but will embolden him to take a bigger bite.
I don't think Trump needs to terrify SCOTUS. I think there are 5 votes in the bag for the Federalist Society, aka modern Royalists/Tories. I think Barret wavers at times between her patronage and her realization of the larger plan at work. I think we are seeing the consequence of Grant's "genteel gentleman's surrender" given to Lee rather than ordering a complete, total, and unconditional surrender.
I'm not a lawyer but I find your analysis and clear explanations so interesting. Thank you.
May I suggest they pick up litter along the Dan Ryan or the Tri-State.
But don’t come now, Texans. Wait until the city has better weather in the new year.
Bring your ice skates!
What happens if Illinois arrests the Texans kidnapping Illinois residents? What happens if, hopefully not, someone "stands their ground" against Texans with guns threatening them? The entire reason to federalize National Guard units is to grant them federal authority to supersede state authority.
Thank you so much. I sincerely hope someone from Illinois reads this and forwards it to the appropriate folks in Illinois.
If all else fails, could Illinois actually request assistance, in the form of blue state national guard, to deal with an unwanted and unasked for redstate national guard invasion?
Or could JBPritzker activate the state’s own National Guard, to oppose the Texans? Could this end up as a standoff between two Guards
THIS is THE question. He should do it now and let's just get this over with. Simultaneously cut off the new Confederacy's welfare money by withholding urban/suburban and blue state subsidizing of red states and rural CSA funding. Let them pay their own way for a change.
New Mexico and Colorado Guard can sweep into Austin, round up the governor and friends and fly them to Mexico City to discuss emplacing razor-wire in the Rio Grande. I'm not sure that got the bi-lateral discussion it deserved.
Thank you for this explanation. I have faith in Pritzker and our AG Raoul to fight back efficiently, and although I no longer have faith in SCOTUS to check the orange Mussolini, they may check Abbott at the prospect of civil war.
I remember Robert E Lee tried something like this marching north from Maryland. It didn’t end well for his troops.
Steve, this is great, but I think it might be helpful to explain that the Guard actually wears 4 hats, not just 3. Title 10 contemplates two separate roles for the NG, right? They can be mobilized as a reserve component (National Guard of the United States) or federalized as the organized militia (National Guard). This distinction seems to have gotten lost, but might be important for these domestic deployments. Or did this arrangement change somehow?
Steve, I gave it my best shot, but right now I wish I had gone to law school!
FIGHT BACK! If YOU Live in a Blue State, follow this link and Contact Your Governor!
https://open.substack.com/pub/jodygorran/p/if-you-live-in-a-blue-state-contact?r=68rn&utm_medium=ios
I have one question as a layman: If those troops stay unfederalized and unfederalized and therefore under the order of governor Abbott, doesn't that mean that the power of Abbott's orders end at the borders of Texas, whatever Trump writes in those orders (or whoever does it on behalf of Trump)? Wouldn't those Texan troops automatically become ordinary US citizens subjected to Illinois law once entering Illinois?
It certainly seems implausible that the states that ratified the Constitution would have done so if they thought it permitted the administration’s proposal, but Article IV Section 4 seems an alarmingly thin reed to nudge this Supreme Court to the obvious right answer. It suggests your line of reasoning but does not dictate it, as, absent a request from the target state, that state appears merely not guaranteed protection against domestic violence. That is not the same thing as a prohibition on the United States deciding to provide unrequested purported protection. I believe I’ve seen this Supreme Court make a hash out of much more straightforward constitutional provisions than this.
Assuming Trump orders members of the Texas National Guard to Chicago pursuant to 32 USC 502(f)(2), are the members of the Texas Guard ordered to Illinois under the control of the governor of Texas or the governor of Illinois during the time the Texas Guard members are in Illinois?
If these Texas Guard members are under the control of the governor of Texas when in Illinois, can the Texas governor empower members of the Texas Guard to enforce Illinois state law in Illinois?
Since the President’s authority under 32 USC 502(f)(2) is limited to calling a state guard to participate in drill, instruction, training or other duty which may include “support of operations or missions undertaken at the request of the President or Secretary of Defense”, must the “operations or missions” be similar or related to training, instruction, or assemble?
Does the President have the authority to empower Texas National Guard members to enforce Illinois state law while in Illinois to support operations or missions undertaken by the President?
I assume the President has the authority to empower Texas National Guard members to enforce federal law in Illinois but if the President does so, has the President “federalized” the Texas Guard members sent to Illinois to enforce federal law?
Texas