In response to adverse judicial rulings, the President's advisers and supporters are claiming courts lack the power to halt domestic use of the military. A critical early precedent is to the contrary.
When Trump's use of the military on domestic soil is ruled on by the Supreme Court, I have no doubt that the court's originalists will be blinded by their own biases and somehow miss the original thoughts of the Founders. Thank you for this education!
Thanks for this bit of history I've been looking for places where originalism will bite the justices in the butt. This chomp does not seem to bother them much; they just switch to unitary executive theory which seems to be about as "unoriginalist" as you can get.
We are in a weird situation with ICE behavior, where the ones who who are opposing the execution of the laws of the US are ICE goons themselves. Can the governor of a State call out the national guard to whop ICE agents who are refusing to follow the laws, much less the spirit behind the laws?
How will the Extremes respond when faces with the fact that protests are peaceful UNITL ICE starts lobbing tear gas and fizz bangs and "non lethal missiles" at the protestors. I keep wondering when self defense starts being recognized. One that comes to mind is indeed in Portland, in JUNE, where one protestor is accused of assaulting ICE officers WITH a smoke bomb. Where did he GET the smoke bomb? It has to have been lobbed AT HIM.
But I can easily see this court simply twisting the facts to suit, as they did in the Bremerton Coach case, where Gorsuch states that the coach "offered his prayers quietly while his students were otherwise occupied" when the dissent included PICTURES of the scrum in mid field of the whole team bowed in prayer.
I applaud the judges who meticulously after testimony make detailed findings of fact. It scares me that this Extreme Court will find all those facts to be "clearly erroneous" simply because they don't want to believe them.
You seem a bit apologetic for the only position that makes sense. If the judiciary is powerless to stop a rogue executive from slaughtering American citizens, there is no such thing as a balance of power, there is only power. We're then a nation of brute force and not of laws. Entertaining that conclusion as legally sound is batshit lunacy.
"Thought of Justice—As if Justice could be anything but the same ample law, expounded by natural judges and saviors,
As if it might be this thing or that thing, according to decisions." -- Walt Whitman
The Supreme Court majority seems to be intentionally losing itself in a thicket of technical decisions so as to keep the overarching principles of justice that shine above it out of sight.
Thank you for the historical reference. I too found her ruling remarkably refreshing and clearly stated, which has generally been true of the federal judges.
Thanks for the history, Prof. Vladeck. I know it's not supposed to matter and Chief Justice John Roberts insists it doesn't, but Judge Karin Immergut was appointed by Trump during his first term. That fact should at least limit MAGA criticism of her ruling as partisan, although it never seems to stop Trump.
The Trump method of defending its actions is to throw as much legal shit against the wall and see what sticks. In this case, I'm guessing John Sauer, Trump's SG, will argue Congress' 1795 repeal of the ex ante judicial review requirement supports their argument that the courts have no jurisdiction over the matter while the President has the full power and authority under (a compliant) Congress to exercise this authority.
The immediate question, however, is whether the Supreme Court, on emergency appeal, will stay the lower courts' TRO/injunctions (as is their MO) and chastise the lower courts for exceeding their authority because ONLY this Extreme Court can divine what is "a great level of deference to the Presidential determination" (tethered to fact or not); whether protests against the Federal or red states governments (especially with flashlights) are now considered forms of "rebellion"; or, if posting videos/photos of protests are forms of *creating* "a danger of a rebellion."
In the event the Extreme Court does issue a Shadow Docket stay in favor of the Trump regime (as is their MO), Trump's order will be considered constitutional until the matter meanders its way back to the High Court several years from now. In the meantime, the armed forces will be hard pressed to oppose Trumps' order - it will be *temporarily* constitutional. The result: we may have federal troops, including the 82nd Airborne, deployed to every major city in the Blue states.
It's great to see originalists beaten at their own game. Thanks for the historical information.
But how do the president's advisors deal with the Posse Comitatus Act? Are they claiming that the act is unconstitutional; or that the president alone can determine when its exceptions apply and his determination is not reviewable by the courts? Is there a third possible claim I'm not aware of?
True, but on the other hand Congress removed the requirement for obtaining judicial approval, suggesting that Congress decided to leave these matters in the hands of the president. I don't like the implications of such an interpretation, but it seems plausible to me. On the other hand, I suppose one might also infer that, while Congress removed the provision for obtaining prior approval, the courts could still review a president's actions under the act, after they have begun.
This latter point is the key. Congress took away the requirement of *pre-deployment* judicial review, but on policy, not constitutional grounds. And its existence, even briefly, is pretty powerful evidence that the Founding generation did *not* think judicial review of domestic use of the military was in any way precluded.
In which case I would guess that the other question that arises from this whether courts have the inherent power to review these matters, or whether courts only have that power when Congress specifically delegates it to them. Also, isn’t there a question of whether this applies only to the Insurrection Act, or more generally? In any case, this, along with Congress’s power to declare war and its power of the purse, would seem to be strong counters to the claim that the president has unfettered authority in matters of national security.
Excellent and very timely historical reference. Thanks
When Trump's use of the military on domestic soil is ruled on by the Supreme Court, I have no doubt that the court's originalists will be blinded by their own biases and somehow miss the original thoughts of the Founders. Thank you for this education!
You are amazing! Thank you. You stay safe! We need you!
Hoping the Supremes read your Substack. Do you think they do?
Thanks for this bit of history I've been looking for places where originalism will bite the justices in the butt. This chomp does not seem to bother them much; they just switch to unitary executive theory which seems to be about as "unoriginalist" as you can get.
We are in a weird situation with ICE behavior, where the ones who who are opposing the execution of the laws of the US are ICE goons themselves. Can the governor of a State call out the national guard to whop ICE agents who are refusing to follow the laws, much less the spirit behind the laws?
How will the Extremes respond when faces with the fact that protests are peaceful UNITL ICE starts lobbing tear gas and fizz bangs and "non lethal missiles" at the protestors. I keep wondering when self defense starts being recognized. One that comes to mind is indeed in Portland, in JUNE, where one protestor is accused of assaulting ICE officers WITH a smoke bomb. Where did he GET the smoke bomb? It has to have been lobbed AT HIM.
But I can easily see this court simply twisting the facts to suit, as they did in the Bremerton Coach case, where Gorsuch states that the coach "offered his prayers quietly while his students were otherwise occupied" when the dissent included PICTURES of the scrum in mid field of the whole team bowed in prayer.
I applaud the judges who meticulously after testimony make detailed findings of fact. It scares me that this Extreme Court will find all those facts to be "clearly erroneous" simply because they don't want to believe them.
You seem a bit apologetic for the only position that makes sense. If the judiciary is powerless to stop a rogue executive from slaughtering American citizens, there is no such thing as a balance of power, there is only power. We're then a nation of brute force and not of laws. Entertaining that conclusion as legally sound is batshit lunacy.
"Thought of Justice—As if Justice could be anything but the same ample law, expounded by natural judges and saviors,
As if it might be this thing or that thing, according to decisions." -- Walt Whitman
The Supreme Court majority seems to be intentionally losing itself in a thicket of technical decisions so as to keep the overarching principles of justice that shine above it out of sight.
Thank you for the historical reference. I too found her ruling remarkably refreshing and clearly stated, which has generally been true of the federal judges.
Thanks for the history, Prof. Vladeck. I know it's not supposed to matter and Chief Justice John Roberts insists it doesn't, but Judge Karin Immergut was appointed by Trump during his first term. That fact should at least limit MAGA criticism of her ruling as partisan, although it never seems to stop Trump.
The Trump method of defending its actions is to throw as much legal shit against the wall and see what sticks. In this case, I'm guessing John Sauer, Trump's SG, will argue Congress' 1795 repeal of the ex ante judicial review requirement supports their argument that the courts have no jurisdiction over the matter while the President has the full power and authority under (a compliant) Congress to exercise this authority.
The immediate question, however, is whether the Supreme Court, on emergency appeal, will stay the lower courts' TRO/injunctions (as is their MO) and chastise the lower courts for exceeding their authority because ONLY this Extreme Court can divine what is "a great level of deference to the Presidential determination" (tethered to fact or not); whether protests against the Federal or red states governments (especially with flashlights) are now considered forms of "rebellion"; or, if posting videos/photos of protests are forms of *creating* "a danger of a rebellion."
In the event the Extreme Court does issue a Shadow Docket stay in favor of the Trump regime (as is their MO), Trump's order will be considered constitutional until the matter meanders its way back to the High Court several years from now. In the meantime, the armed forces will be hard pressed to oppose Trumps' order - it will be *temporarily* constitutional. The result: we may have federal troops, including the 82nd Airborne, deployed to every major city in the Blue states.
We are reaching another inflection point.
Excellent. Thank you.
Thank you!
It's great to see originalists beaten at their own game. Thanks for the historical information.
But how do the president's advisors deal with the Posse Comitatus Act? Are they claiming that the act is unconstitutional; or that the president alone can determine when its exceptions apply and his determination is not reviewable by the courts? Is there a third possible claim I'm not aware of?
To each person who accesses this piece: Please forward it to at least 10 others. The time is coming and we must be prepared in resistance.
Unfortunately it will all depend on SCOTUS…🫤
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True, but on the other hand Congress removed the requirement for obtaining judicial approval, suggesting that Congress decided to leave these matters in the hands of the president. I don't like the implications of such an interpretation, but it seems plausible to me. On the other hand, I suppose one might also infer that, while Congress removed the provision for obtaining prior approval, the courts could still review a president's actions under the act, after they have begun.
This latter point is the key. Congress took away the requirement of *pre-deployment* judicial review, but on policy, not constitutional grounds. And its existence, even briefly, is pretty powerful evidence that the Founding generation did *not* think judicial review of domestic use of the military was in any way precluded.
In which case I would guess that the other question that arises from this whether courts have the inherent power to review these matters, or whether courts only have that power when Congress specifically delegates it to them. Also, isn’t there a question of whether this applies only to the Insurrection Act, or more generally? In any case, this, along with Congress’s power to declare war and its power of the purse, would seem to be strong counters to the claim that the president has unfettered authority in matters of national security.