It's hard to keep track of the whirlwind of litigation surrounding President Trump's unprecedented deployments of federalized National Guard troops. Here's a quick update on where things stand.
One note: I've updated the piece to reflect that Judge Immergut's second TRO was not just about out-of-state National Guard personnel, but was about *all* personnel. So the status quo in Portland at the moment is *no* deployments are allowed--because the second TRO is still in effect.
The Democrats should symbolically open the House and invite any Republican that wants to join them. Let them act even if performatively on the people’s business while the people’s house is being desecrated and ruined!
Steve, I always appreciate the detailed discussions, especially in this instance, but think the argument advanced by your colleague Marty Lederman, while interesting and possibly right, is quite dangerous since it would encourage the President to use regular army troops in American cities, something that would remove Governors from the debate as to the need for such troops and might lead to even greater judicial deference to Presidential determinations. Please be careful what Prof. Lederman and you ask for.
I thought about that, too. On the one hand, the 101st Airborne was sent into Little Rock. On the other, there is such a strong tradition of reversion toward the idea of deploying the military against American citizens that it would be a clarifying moment: How rotten are the demos and the state?
Thanks for untangling this mess! Question: has there always been such a huge and meaningful chasm between the “procedural” and “merits” tracks in cases where the stakes were so high? Were there major procedural challenges in Roe v Wade, Brown v BOE, Loving v Virginia, Griswold, etc? Or is it just that we only memorialize the merits? Is this simply about the shadow docket or is there something deeper going on?
If Marty Lederman is right, would that tend to push Trump toward invoking the Insurrection Act to deploy regular military, rather than federalizing national guard troops?
See p. 19 ff, where he argues that "it is not clear that any such authority would be available here" and supports the claim with a reading of the 1964 Katzenbach memo to LBJ.
As Lederman reads sec 12406(3), if "regular forces" means the Army, Navy, Air Force and Coast Guard and they are not sufficient, doesn't that mean Trump couldn't invoke 12406(3) unless or until he deployed such "regular forces" pursuant to the Posse Comitatus Act and such deployment was not sufficient? Steve, do you ever feel like you are wasting your time thinking about what is the correct application of the law to the facts when the SCOTUS-6 decide what outcome they want to reach on a partisan basis and then go looking for legal support and manipulate the facts to get to that result? That is, just as the DOJ has lost the presumption of good faith (I forget the actual term), isn't it clear by this point that the SCOTUS-6 are just a bunch of Fox News watching maggots in black robes?
But how could Regular Forces include the military? Won't deploying the active duty military to enforce laws violate posse commitatus? Otherwise the president could God forbid just do that without bothering about the Guard. (Not a lawyer)
the insurrection act provides an exception to posse comitatus; for instance, ulysses s grant used the regular forces to suppress the ku klux klan. the amicus argues that posse comitatus also applies to the national guard when it is federalized.
so the argument goes that federalizing the national guard isn't a loophole; they're actually even harder to use, since on top of posse comitatus, the regular forces have to be insufficient before you can bring the national guard into it
According to the legislative history, this seems to have been the purpose of adding the “executing the law” part to what existed previously (R.S. § 1642): to prioritize use of the regular military over calling up the Guard for putting down significant obstructions to federal law, which was already practice since Reconstruction. As I read it, it was not meant to make it easier for the President to seize control of the National Guard from governors to provide assistance to civil authorities for the equivalent of today’s title 32 missions when the governor won’t go along (as in Illinois).
I did not see Lederman's argument coming; no hint that such a reading was in the air, but it is to me persuasive, and it ought to be persuasive to any Originalist who accounts for even the words he doesn't like.
What I fear is that Roberts will find that the Six Blind Mice already concluded in 2024 that they haven't the least idea what a rebellion or an insurrection is.
There’s been an ongoing discussion on Bluesky for weeks. By which I mean I’ve been going on about it for weeks. I’m really happy Marty put this out there!
Professor Lederman's amicus brief is extremely interesting. I wrote an article about the differences between his argument and the States' arguments--and the reasons why the States likely refrained from raising his interpretation of "regular forces"--here.
I think this is right; litigants may prefer an interpretation of § 12406 that leaves the PCA applicable to the the NG in its militia status despite the plain language of the PCA and historical role of the militia. But there’s the long run and the really long run. Considering § 12406 to be simply a call-up statute for the NG for whatever purpose that doesn’t necessarily violate the PCA could take considerable control from governors over their states’ guard forces. I would also point out how little practical impact the PCA has really had outside of DOD basically complying out of reluctance to get involved in domestic law enforcement missions.
This is why many people of good will have decided that the courts are no real answer to the Trump Administrations action, even from those courts that will not simply give a judicial shrug and a "might as well let Trump be Trump" outcome. The courts are the rescue team that will not arrive in time. We have all been treated to the visuals of a military operation carried out on a civilian apartment building in Chicago resulting in no apparent criminal charges of any of the women and children apprehended by the Feds; the military killing people who - as Senator Paul put it - we don't even know their names - with a couple survivors who turned out not to be criminals; and the White House - our national symbol of how the Presidency represents all of us - being chewed up by large demolition machines (most likely made in Japan) because Trump got tired of looking at it. We can't stop any of this, and no member of the judicial branch would dare come out and speak for the rest of us in our traumatized state of mind from all of this destruction. Not in real time, anyway.
I have the same question as Modesto Kid regarding use of “regular forces” and the Posse Comitatus Act. Unless, the statute’s exception for using the Guard is considered to be the Congressional authorization in the PCA. Is that possible?
That’s my reading—that the PCA exception for circumstances expressly provided in Constitution or statute would be a necessary precondition to using regular forces under 12406(3). Professor Lederman seems to make a strong case—stunning that this seems to have not previously been raised.
Ack--I take back that this was not previously raised--as the amicus brief points out, the district court raised this--see 68a-71a in application. Possibly the plaintiffs raised it before that.
Per my (layman's) understanding, the PCA (now codified at 18 U.S.C. § 1385) provides a default prohibition against use of the armed forces for law enforcement, which would be overcome by any express congressional or statutory authorization for such use. The Insurrection Act is presumably one such provision. I don't know whether other such express provisions may exist, but they could conceivably be enacted in the future, or determined to exist by the Supreme Court.
Yes, this would render 12406(3) rather limited but, as Lederman notes, the original legislation precedent to 10 USC 12406 concerned establishing the Guard as a reliable force to support the regular military, and to establish rules for their deployment based on precedent conditions. § 12406 is not rendered illogical by other elements of current law that might limit the occurrence of those precedent conditions.
'Paraphrasing California’s argument, Judge Mark Bennett asked: “Even members of the Guard called into service are subject to all laws and regulations etc., which would include the PCA. So what’s your response to that?”
“I don’t think that language would override the express authorization in Section 12406 to execute the laws,” the Justice Department’s Eric McArthur responded.'
But this seems awfully suspect to me. The provision at issue, 18 USC § 12406, concerns calling the national guard into federal service, which would seem to not plausibly constitute an authorization for the use of "any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus" [PCA, as currently codified in 18 U.S. Code § 1385] (though perhaps there is an argument for why the Guard is "a part of" the regular military). Regardless, I think there is no reasonable way to read § 12406 as itself providing an authorization to use "regular forces" for civilian law enforcement (to tie to Lederman's point).
Section 12406 does not authorize using regular troops for law enforcement, but seems to presume they have already been deployed under the Insurrection Act, an exception to the PCA.
I added a note about the amicus brief above. I reviewed the Illinois briefs and did not see any reference to Lederman's "regular forces" argument, including even after the district court made the argument.
I mean, § 12406 literally permits the president to call into federal service such NG as necessary to execute the law when regular forces are insufficient. Seems like a clear exception on its face. Historically, it doesn’t look like anybody thought the PCA applied to the militia in federal status, probably because the militia could only be called up to repel invasions, suppress insurrections, and execute federal law. It never made sense to me that NG can be called up as necessary to execute the law so long as they don’t execute the law.
One note: I've updated the piece to reflect that Judge Immergut's second TRO was not just about out-of-state National Guard personnel, but was about *all* personnel. So the status quo in Portland at the moment is *no* deployments are allowed--because the second TRO is still in effect.
The Democrats should symbolically open the House and invite any Republican that wants to join them. Let them act even if performatively on the people’s business while the people’s house is being desecrated and ruined!
Spread the thought!
Steve, I always appreciate the detailed discussions, especially in this instance, but think the argument advanced by your colleague Marty Lederman, while interesting and possibly right, is quite dangerous since it would encourage the President to use regular army troops in American cities, something that would remove Governors from the debate as to the need for such troops and might lead to even greater judicial deference to Presidential determinations. Please be careful what Prof. Lederman and you ask for.
couldn't this be said of any argument against deploying the national guard?
I thought about that, too. On the one hand, the 101st Airborne was sent into Little Rock. On the other, there is such a strong tradition of reversion toward the idea of deploying the military against American citizens that it would be a clarifying moment: How rotten are the demos and the state?
Thanks for untangling this mess! Question: has there always been such a huge and meaningful chasm between the “procedural” and “merits” tracks in cases where the stakes were so high? Were there major procedural challenges in Roe v Wade, Brown v BOE, Loving v Virginia, Griswold, etc? Or is it just that we only memorialize the merits? Is this simply about the shadow docket or is there something deeper going on?
If Marty Lederman is right, would that tend to push Trump toward invoking the Insurrection Act to deploy regular military, rather than federalizing national guard troops?
See p. 19 ff, where he argues that "it is not clear that any such authority would be available here" and supports the claim with a reading of the 1964 Katzenbach memo to LBJ.
As Lederman reads sec 12406(3), if "regular forces" means the Army, Navy, Air Force and Coast Guard and they are not sufficient, doesn't that mean Trump couldn't invoke 12406(3) unless or until he deployed such "regular forces" pursuant to the Posse Comitatus Act and such deployment was not sufficient? Steve, do you ever feel like you are wasting your time thinking about what is the correct application of the law to the facts when the SCOTUS-6 decide what outcome they want to reach on a partisan basis and then go looking for legal support and manipulate the facts to get to that result? That is, just as the DOJ has lost the presumption of good faith (I forget the actual term), isn't it clear by this point that the SCOTUS-6 are just a bunch of Fox News watching maggots in black robes?
But how could Regular Forces include the military? Won't deploying the active duty military to enforce laws violate posse commitatus? Otherwise the president could God forbid just do that without bothering about the Guard. (Not a lawyer)
the insurrection act provides an exception to posse comitatus; for instance, ulysses s grant used the regular forces to suppress the ku klux klan. the amicus argues that posse comitatus also applies to the national guard when it is federalized.
so the argument goes that federalizing the national guard isn't a loophole; they're actually even harder to use, since on top of posse comitatus, the regular forces have to be insufficient before you can bring the national guard into it
According to the legislative history, this seems to have been the purpose of adding the “executing the law” part to what existed previously (R.S. § 1642): to prioritize use of the regular military over calling up the Guard for putting down significant obstructions to federal law, which was already practice since Reconstruction. As I read it, it was not meant to make it easier for the President to seize control of the National Guard from governors to provide assistance to civil authorities for the equivalent of today’s title 32 missions when the governor won’t go along (as in Illinois).
See Little Rock, AR, 1957.
I did not see Lederman's argument coming; no hint that such a reading was in the air, but it is to me persuasive, and it ought to be persuasive to any Originalist who accounts for even the words he doesn't like.
What I fear is that Roberts will find that the Six Blind Mice already concluded in 2024 that they haven't the least idea what a rebellion or an insurrection is.
There’s been an ongoing discussion on Bluesky for weeks. By which I mean I’ve been going on about it for weeks. I’m really happy Marty put this out there!
Professor Lederman's amicus brief is extremely interesting. I wrote an article about the differences between his argument and the States' arguments--and the reasons why the States likely refrained from raising his interpretation of "regular forces"--here.
https://www.activevoice.us/p/regular-forces-irregular-strategy
I think this is right; litigants may prefer an interpretation of § 12406 that leaves the PCA applicable to the the NG in its militia status despite the plain language of the PCA and historical role of the militia. But there’s the long run and the really long run. Considering § 12406 to be simply a call-up statute for the NG for whatever purpose that doesn’t necessarily violate the PCA could take considerable control from governors over their states’ guard forces. I would also point out how little practical impact the PCA has really had outside of DOD basically complying out of reluctance to get involved in domestic law enforcement missions.
Extremely helpful, thank you Steve. Perhaps in the future you will write more about "unable with regular forces" in 10 USC 12406(3).
This is why many people of good will have decided that the courts are no real answer to the Trump Administrations action, even from those courts that will not simply give a judicial shrug and a "might as well let Trump be Trump" outcome. The courts are the rescue team that will not arrive in time. We have all been treated to the visuals of a military operation carried out on a civilian apartment building in Chicago resulting in no apparent criminal charges of any of the women and children apprehended by the Feds; the military killing people who - as Senator Paul put it - we don't even know their names - with a couple survivors who turned out not to be criminals; and the White House - our national symbol of how the Presidency represents all of us - being chewed up by large demolition machines (most likely made in Japan) because Trump got tired of looking at it. We can't stop any of this, and no member of the judicial branch would dare come out and speak for the rest of us in our traumatized state of mind from all of this destruction. Not in real time, anyway.
Thank you for laying out the issues for us!
I have the same question as Modesto Kid regarding use of “regular forces” and the Posse Comitatus Act. Unless, the statute’s exception for using the Guard is considered to be the Congressional authorization in the PCA. Is that possible?
That’s my reading—that the PCA exception for circumstances expressly provided in Constitution or statute would be a necessary precondition to using regular forces under 12406(3). Professor Lederman seems to make a strong case—stunning that this seems to have not previously been raised.
Ack--I take back that this was not previously raised--as the amicus brief points out, the district court raised this--see 68a-71a in application. Possibly the plaintiffs raised it before that.
But, this implies that deploying the military unsuccessfully is a precursor to the Guard, but how would that not violate the PCA?
Per my (layman's) understanding, the PCA (now codified at 18 U.S.C. § 1385) provides a default prohibition against use of the armed forces for law enforcement, which would be overcome by any express congressional or statutory authorization for such use. The Insurrection Act is presumably one such provision. I don't know whether other such express provisions may exist, but they could conceivably be enacted in the future, or determined to exist by the Supreme Court.
Yes, this would render 12406(3) rather limited but, as Lederman notes, the original legislation precedent to 10 USC 12406 concerned establishing the Guard as a reliable force to support the regular military, and to establish rules for their deployment based on precedent conditions. § 12406 is not rendered illogical by other elements of current law that might limit the occurrence of those precedent conditions.
Notably, the government argued yesterday that this works the other way around (https://talkingpointsmemo.com/where-things-stand/national-guard-posse-comitatus):
'Paraphrasing California’s argument, Judge Mark Bennett asked: “Even members of the Guard called into service are subject to all laws and regulations etc., which would include the PCA. So what’s your response to that?”
“I don’t think that language would override the express authorization in Section 12406 to execute the laws,” the Justice Department’s Eric McArthur responded.'
But this seems awfully suspect to me. The provision at issue, 18 USC § 12406, concerns calling the national guard into federal service, which would seem to not plausibly constitute an authorization for the use of "any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus" [PCA, as currently codified in 18 U.S. Code § 1385] (though perhaps there is an argument for why the Guard is "a part of" the regular military). Regardless, I think there is no reasonable way to read § 12406 as itself providing an authorization to use "regular forces" for civilian law enforcement (to tie to Lederman's point).
Section 12406 does not authorize using regular troops for law enforcement, but seems to presume they have already been deployed under the Insurrection Act, an exception to the PCA.
I added a note about the amicus brief above. I reviewed the Illinois briefs and did not see any reference to Lederman's "regular forces" argument, including even after the district court made the argument.
https://www.activevoice.us/p/regular-forces-irregular-strategy
I mean, § 12406 literally permits the president to call into federal service such NG as necessary to execute the law when regular forces are insufficient. Seems like a clear exception on its face. Historically, it doesn’t look like anybody thought the PCA applied to the militia in federal status, probably because the militia could only be called up to repel invasions, suppress insurrections, and execute federal law. It never made sense to me that NG can be called up as necessary to execute the law so long as they don’t execute the law.
Why do you think Judge Berzon did not style her opinion as a dissent?
How does the “regular forces” requirement of 10246 interact with posse comitatus?
You come home and find your house has been leveled.
THIS is what a dictatorship feels like.
https://substack.com/redirect/9916950e-53a8-4fd4-8196-e1f9e082c213?j=eyJ1IjoiaTFmMiJ9.ts8bL0BVQ_E_RtLkFPkslNIDxnTLRMrzJy4C1u0itUA
how many of the judges who decided to not hear the panel appeal actually LIVE in or near Portland?