The supplemental briefing order in the Illinois National Guard case provides an obvious way for the Court to block President Trump's deployments to date—and a fair concern about what could come next.
Steve's brief discussion of Jodi Kantor's piece on a rift among the liberal Justices is helpful. Especially his demonstration that the have been more unified in recent months.
I don't know the history of this statute, but I do know a fair bit of U.S. history. And I have a fair bit of relevant real-world experience. An extremely good and important functional reason may underlie the requirement to use of regular forces instead of militias. Historically, in the U.S. regular forces were much more professional and much more disciplined than any militia. Too often, militias chose their own leaders, and they too often were no better than a heavily-armed, wildly uncontrollable mob.
I'm speaking especially about the militia's of the mid-to-late 1800's (including in conflicts with Native Americans and our Spanish or Mexican neighbors). But as early as the start of the Revolutionary War, regular soldiers and national leaders saw the need for a national army because of the dangerous defects of militias. See, e.g., https://www.history.com/this-day-in-history/September-30/washington-blames-militia-for-problems
Some wonder about Donald's capacity to faithfully execute anything, much less the Constitution. The longer this charade goes on, the harder it will be for everybody.
It's worth considering the text and structure of the Constitution regarding the meaning of "forces" and the use of force. Our Constitution used the word "forces" twice, both times emphasizing its limited scope.
In Article I, the People delegated to Congress the power to do the following regarding regular forces:
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces.
Immediately (and only) after that, Article I authorized Congress to take certain actions with respect to militias (i.e., official bodies of combatants that weren't within the regular forces):
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
But before either of those, Article I authorized Congress "to grant Letters of Marque and Reprisal" (authorizing essentially wartime operations by private persons (not either regular forces or militia)). And Article I authorized Congress to distinguish between privateering (under Letters of Marque) and "Piracies and Felonies committed on the high Seas."
Subsequently, the Fifth Amendment directly re-emphasized the distinction between regular forces and the militia:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger."
I have to think that the Court’s refusal to kowtow to Trump yet again, and to kick the can down the road at least for a little while, is encouraging. I harbor a suspicion that Barrett knows her 7th circuit colleagues well enough to take their views seriously, and Roberts always looks for an out.
Great article as always, I will just make a mild style note - your use of italics for emphasis seems to have increased, to the point it occurs in most paragraphs and sometimes two or three times in several paragraphs. I found that to be frequent enough to not really work as emphasis and to become distracting
Steve - what does "unlawful combination" mean in the context of the Insurrection Act? Is that an old timey thing or does it just mean a combination of of insurrection and domestic violence? (I'm thinking it's not the latter because either Insurrection OR domestic violence is a trigger on its own so why make a combination of it a trigger too?) Is "combination" an old word which is related to the way "combine" is used in the NFL draft? Is it an American word that this Australian just hasn't heard before? Thx!
Section 12406 is derived from the 1795 Militia Act, the same statute from which the Insurrection Act originated. The “unable with the regular forces” language comes from the 1908 amendment to the 1903 Dick Act creating the beginnings of the modern National Guard, as Steve mentioned. Using “the regular forces” first presupposes the Insurrection Act has already been invoked, including all of the requirements those statutes impose. Yes, the Nixon use of §12406 to use the military to sort and deliver mail during what was promised to be a nationwide postal strike did not involve the Insurrection Act, but they did have a contingency plan in case of violence that would have implemented “Garden Plot,” which would have brought in the Insurrection Act. Interestingly, the National Guard troops used for that purpose were activated in their reserve status rather than called into federal service in their militia status. But contrary to Judge Breyer’s reading of it, regular forces were not postal workers.
I think one point worth remembering is that in 1903 (and 1908), there did not exist the vast array of federal law enforcement alphabet agencies we have today. If Congress had meant the U.S. Marshal, it would have said so (as it did elsewhere in these statutes).
If Trump invokes the Insurrection Act, then courts rule that facts are insufficient to warrant such invocation, could Trump not then argue that § 12406 has been triggered: that he is "unable with the regular forces to execute the laws of the United States," because the Courts won't let him?
In addition to meaningful court reform analysis (like was done in newsletter 76 - A Taxonomy for Court Reform), I'd love to see some analysis covering potential Article II reforms that for preventing future abuses of emergency declarations by the president like the ones we've been witnessing during Trump 2.0. I read a recent NYT article counting 10 emergencies (nine national emergencies, plus a “crime emergency”) declared by Trump to justify actions like his tariffs and mass deportation efforts and many others that normally require congressional approval or (lengthy) regulatory review.
Unfortunately the concept of stare decisus is gone, precedent no longer exists, unfortunately, sadly, “ the six” sustain T and track backwards to explain, cautiously avoiding a decision that would ignored by T creating an actual constitutional crisis…
Since the Roberts Court has ignored the introductory words to the Second Amendment about the necessity of a "well regulated militia" - and anyway who decides who is well regulated, and do the Proud Boys and Oath Keepers qualify? - might they not interpret or misinterpret "regular forces" in such a way as to support POTUS in practice yet again?
I am intrigued by, and thank you Steve for your effort, knowledge and insights clarifying the implications and questioning the validityof the positions being taken by POTUS regarding the need or justification for the deployment of various armed forces in cities throughout the US, from National Guards (federalized or not and/or offered by one state to operate in another state over the objections of the latter’s local and state governments, e.g., Texas in Illinois (aka the War of Southern Aggression)) and/or to regular military forces. “Perverse” seems too mild a word to describe what is going on. It seems to this non-lawyer citizen that the POTUS playbook includes the following steps:
1. Let loose federal agents, e.g. ICE to seize and detain people – often brutally - with no probable or reasonable cause, a practice which so far the Supreme co-conspirators have allowed to continue while or until they make up their minds, or the role of a Supreme Court becomes null and void because the Unitary Executive or Absolute Monarch decides alone what is the law and what is not, and who is guilty and who is not.
2. When observers of these brutal actions get involved with the federal agents in any way during these abductions (verbally protesting, taking pictures or videos etc.) then they are accused of being traitorous rebels against the government which justifies the claim that there is an insurrection underway, hence other armed forces must be mobilized and summoned into action. In a ridiculous analogy (but no more ridiculous than this scenario) it is as if when someone stabs you for no reason and you bleed onto their clothing, you are then liable for the costs of its cleaning.
In one of if not the darkest of future scenarios, what might happen if POTUS invokes the Insurrection Act, the October surprise in. 2026, to disrupt the midterm elections in his and the Republicans’ favor or to justify continuation or extension of his second term? All part of his “official” actions, of course.
Since I do not have the benefit of a law degree – and I am grateful beyond all measure for and deeply appreciative of those lawyers both within the federal government (if any of this ilk are still employed there) and other local and sate governments, in law firms and universities and corporations, who are still fighting for the rule of law – I tend to look to literature for a better understanding of human behavior from the most noble to the most vile.
I have always been struck by this passage from Charles Dicken’s Oliver Twist:
“It was all Mrs. Bumble. She would do it," urged Mr. Bumble; first looking round, to ascertain that his partner had left the room.
That is no excuse," returned Mr. Brownlow. "You were present on the occasion of the destruction of these trinkets, and, indeed, are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction."
If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass — a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.”
I am not sure if the word commonsense is embedded in many laws or frequently invoked in legal proceedings, but I believe the term “reasonable person” is. To take another ludicrous example, surely (?) someone who used a washing machine to give a bath to their cat, who then drowned, could not win a lawsuit against the manufacturer of the machine on the grounds that it did not warn users against its use as a bath, because that is not a use that a “reasonable person” would contemplate. The question about the Supreme Court – separate from or in addition to questions about their possible faith-based bigotry or corruption or concerns that they reach decisions based upon a political ideology rather than the law as a key instrument and their responsibility to apply to check and balance the actions of self-proclaimed supreme (I am the State) executive power – is whether and if so how many of its members are, to quote Mr. Bumble, asses or idiots.
Finally I am also grateful for the context provided within which to consider the story about the differences between the three admirable Justices (Kagan, Sotomayor and Jackson) in how they interact with their colleagues on the Court who seem contant with the transformation of POTUS into POTentate. Are the differences or the range of choices between where each one decides to operate within a spectrum of possibilities or balances between consensus seeking and building to furious public oppositon shrinking, as the enormity and intransigence of the other Justices' willingness to do nothing in the face of a lawless White House become increasingly unbearable?
Regardless of which statute Trump invokes, I hope federal judges compel Trump to state and prove facts establishing the existence of either a "rebellion" (10 U.S.C. § 12406(2)) or an "insurrection" or "rebellion" (10 U.S.C. § 252, 253). I'd like to see Trump prove, essentially, that he engaged in "insurrection or rebellion against the" United States or gave "aid or comfort to the enemies thereof" (U.S. Constitution Amendment XIV, Section 3).
Steve Schmidt has suggested that the Governor’s of Blue States like Illinois and California act under their State Constitution s to establish state militias like the Texas Rangers, which cannot be federalized and which presumably can resist the invasion of federalized irregular or regular forces. Trump’s position is that his invocation of Insurrection Act is unreviewable. If Trump is right, the Schmidt proposal if exercised sufficiently in advance might be the last line of defense for a State otherwise uninterested in the President’s uninvited intrusion. If the Court rules against Illinois in this case then the Schmidt proposal, which I thought improvident and imprudent at the moment may be all that is left to the Blue States where their Constitutions permit. Thoughts?
If the Posse Comitatus act forbids the use of the regular forces for Law Enforcement purposes, wouldn't that automatically trigger (3) by it's very existence? It forecloses the use of the military to "execute the law." The only valid path should be Insurrection Act > § 12406(2) > § 12406(3). Skipping the first two should preclude (3) from being invoked because of the Posse Comitatus Act; which also is an indicator that the language of (3) must change, because as read on its face and in isolation, the Posse Comitatus Act makes it self-executing (I think that's the term?).
By that logic, the President can federalize the National Guard at any time and for any reason *other than* when the Insurrection Act has been invoked. Not only would that render 12406(1) and (2) surplusage, but it would turn these authorities (and the history they reflect) entirely on their head.
Well, it wouldn't be the first time that conflicts are found that rendered things surplusage. Two statutes 100 years apart, passed with different purposes in mind; and an Executive Branch looking to gain any advantage it possibly can, regardless of how well its interpretation reflects the history of the acts it seeks to leverage. Not saying it should stand up to scrutiny, but the fact that the Insurrection act has more significant hurdles to invoke, and the Executive chose this statute to attempt to carry out its' aims as opposed to the Insurrection Act, seems to indicate they view the two as disconnected enough that 12406 would present the ability to bypass the Insurrection Act.
I mean, that completely neglects the extent to which 12406 was enacted to *harmonize* the new National Guard system with the Insurrection Act. But yes, if a court were to read the plain text of the statute without regard to either (1) the preposterous implications; or (2) the clear contextual evidence to the contrary, we'd have problems.
Steve's brief discussion of Jodi Kantor's piece on a rift among the liberal Justices is helpful. Especially his demonstration that the have been more unified in recent months.
I don't know the history of this statute, but I do know a fair bit of U.S. history. And I have a fair bit of relevant real-world experience. An extremely good and important functional reason may underlie the requirement to use of regular forces instead of militias. Historically, in the U.S. regular forces were much more professional and much more disciplined than any militia. Too often, militias chose their own leaders, and they too often were no better than a heavily-armed, wildly uncontrollable mob.
I'm speaking especially about the militia's of the mid-to-late 1800's (including in conflicts with Native Americans and our Spanish or Mexican neighbors). But as early as the start of the Revolutionary War, regular soldiers and national leaders saw the need for a national army because of the dangerous defects of militias. See, e.g., https://www.history.com/this-day-in-history/September-30/washington-blames-militia-for-problems
Some wonder about Donald's capacity to faithfully execute anything, much less the Constitution. The longer this charade goes on, the harder it will be for everybody.
It's worth considering the text and structure of the Constitution regarding the meaning of "forces" and the use of force. Our Constitution used the word "forces" twice, both times emphasizing its limited scope.
In Article I, the People delegated to Congress the power to do the following regarding regular forces:
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces.
Immediately (and only) after that, Article I authorized Congress to take certain actions with respect to militias (i.e., official bodies of combatants that weren't within the regular forces):
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
But before either of those, Article I authorized Congress "to grant Letters of Marque and Reprisal" (authorizing essentially wartime operations by private persons (not either regular forces or militia)). And Article I authorized Congress to distinguish between privateering (under Letters of Marque) and "Piracies and Felonies committed on the high Seas."
Subsequently, the Fifth Amendment directly re-emphasized the distinction between regular forces and the militia:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger."
I have to think that the Court’s refusal to kowtow to Trump yet again, and to kick the can down the road at least for a little while, is encouraging. I harbor a suspicion that Barrett knows her 7th circuit colleagues well enough to take their views seriously, and Roberts always looks for an out.
Great article as always, I will just make a mild style note - your use of italics for emphasis seems to have increased, to the point it occurs in most paragraphs and sometimes two or three times in several paragraphs. I found that to be frequent enough to not really work as emphasis and to become distracting
Steve - what does "unlawful combination" mean in the context of the Insurrection Act? Is that an old timey thing or does it just mean a combination of of insurrection and domestic violence? (I'm thinking it's not the latter because either Insurrection OR domestic violence is a trigger on its own so why make a combination of it a trigger too?) Is "combination" an old word which is related to the way "combine" is used in the NFL draft? Is it an American word that this Australian just hasn't heard before? Thx!
Section 12406 is derived from the 1795 Militia Act, the same statute from which the Insurrection Act originated. The “unable with the regular forces” language comes from the 1908 amendment to the 1903 Dick Act creating the beginnings of the modern National Guard, as Steve mentioned. Using “the regular forces” first presupposes the Insurrection Act has already been invoked, including all of the requirements those statutes impose. Yes, the Nixon use of §12406 to use the military to sort and deliver mail during what was promised to be a nationwide postal strike did not involve the Insurrection Act, but they did have a contingency plan in case of violence that would have implemented “Garden Plot,” which would have brought in the Insurrection Act. Interestingly, the National Guard troops used for that purpose were activated in their reserve status rather than called into federal service in their militia status. But contrary to Judge Breyer’s reading of it, regular forces were not postal workers.
I think one point worth remembering is that in 1903 (and 1908), there did not exist the vast array of federal law enforcement alphabet agencies we have today. If Congress had meant the U.S. Marshal, it would have said so (as it did elsewhere in these statutes).
I explained the legislative history more on BlueSky here, in case anyone is curious. https://bsky.app/profile/jnklz.bsky.social/post/3m2zcsftysc2y
(I have several threads on this issue there.)
"[b]ut to defend the authority and integrity of the federal courts under the Supremacy Clause of the Constitution."
Doesn't ths suggest the Supreme Court does have "an army" to enforce its decisions?
If Trump invokes the Insurrection Act, then courts rule that facts are insufficient to warrant such invocation, could Trump not then argue that § 12406 has been triggered: that he is "unable with the regular forces to execute the laws of the United States," because the Courts won't let him?
I fear we are just kicking the can down the road.
In addition to meaningful court reform analysis (like was done in newsletter 76 - A Taxonomy for Court Reform), I'd love to see some analysis covering potential Article II reforms that for preventing future abuses of emergency declarations by the president like the ones we've been witnessing during Trump 2.0. I read a recent NYT article counting 10 emergencies (nine national emergencies, plus a “crime emergency”) declared by Trump to justify actions like his tariffs and mass deportation efforts and many others that normally require congressional approval or (lengthy) regulatory review.
Unfortunately the concept of stare decisus is gone, precedent no longer exists, unfortunately, sadly, “ the six” sustain T and track backwards to explain, cautiously avoiding a decision that would ignored by T creating an actual constitutional crisis…
Since the Roberts Court has ignored the introductory words to the Second Amendment about the necessity of a "well regulated militia" - and anyway who decides who is well regulated, and do the Proud Boys and Oath Keepers qualify? - might they not interpret or misinterpret "regular forces" in such a way as to support POTUS in practice yet again?
I am intrigued by, and thank you Steve for your effort, knowledge and insights clarifying the implications and questioning the validityof the positions being taken by POTUS regarding the need or justification for the deployment of various armed forces in cities throughout the US, from National Guards (federalized or not and/or offered by one state to operate in another state over the objections of the latter’s local and state governments, e.g., Texas in Illinois (aka the War of Southern Aggression)) and/or to regular military forces. “Perverse” seems too mild a word to describe what is going on. It seems to this non-lawyer citizen that the POTUS playbook includes the following steps:
1. Let loose federal agents, e.g. ICE to seize and detain people – often brutally - with no probable or reasonable cause, a practice which so far the Supreme co-conspirators have allowed to continue while or until they make up their minds, or the role of a Supreme Court becomes null and void because the Unitary Executive or Absolute Monarch decides alone what is the law and what is not, and who is guilty and who is not.
2. When observers of these brutal actions get involved with the federal agents in any way during these abductions (verbally protesting, taking pictures or videos etc.) then they are accused of being traitorous rebels against the government which justifies the claim that there is an insurrection underway, hence other armed forces must be mobilized and summoned into action. In a ridiculous analogy (but no more ridiculous than this scenario) it is as if when someone stabs you for no reason and you bleed onto their clothing, you are then liable for the costs of its cleaning.
In one of if not the darkest of future scenarios, what might happen if POTUS invokes the Insurrection Act, the October surprise in. 2026, to disrupt the midterm elections in his and the Republicans’ favor or to justify continuation or extension of his second term? All part of his “official” actions, of course.
Since I do not have the benefit of a law degree – and I am grateful beyond all measure for and deeply appreciative of those lawyers both within the federal government (if any of this ilk are still employed there) and other local and sate governments, in law firms and universities and corporations, who are still fighting for the rule of law – I tend to look to literature for a better understanding of human behavior from the most noble to the most vile.
I have always been struck by this passage from Charles Dicken’s Oliver Twist:
“It was all Mrs. Bumble. She would do it," urged Mr. Bumble; first looking round, to ascertain that his partner had left the room.
That is no excuse," returned Mr. Brownlow. "You were present on the occasion of the destruction of these trinkets, and, indeed, are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction."
If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass — a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.”
I am not sure if the word commonsense is embedded in many laws or frequently invoked in legal proceedings, but I believe the term “reasonable person” is. To take another ludicrous example, surely (?) someone who used a washing machine to give a bath to their cat, who then drowned, could not win a lawsuit against the manufacturer of the machine on the grounds that it did not warn users against its use as a bath, because that is not a use that a “reasonable person” would contemplate. The question about the Supreme Court – separate from or in addition to questions about their possible faith-based bigotry or corruption or concerns that they reach decisions based upon a political ideology rather than the law as a key instrument and their responsibility to apply to check and balance the actions of self-proclaimed supreme (I am the State) executive power – is whether and if so how many of its members are, to quote Mr. Bumble, asses or idiots.
Finally I am also grateful for the context provided within which to consider the story about the differences between the three admirable Justices (Kagan, Sotomayor and Jackson) in how they interact with their colleagues on the Court who seem contant with the transformation of POTUS into POTentate. Are the differences or the range of choices between where each one decides to operate within a spectrum of possibilities or balances between consensus seeking and building to furious public oppositon shrinking, as the enormity and intransigence of the other Justices' willingness to do nothing in the face of a lawless White House become increasingly unbearable?
Regardless of which statute Trump invokes, I hope federal judges compel Trump to state and prove facts establishing the existence of either a "rebellion" (10 U.S.C. § 12406(2)) or an "insurrection" or "rebellion" (10 U.S.C. § 252, 253). I'd like to see Trump prove, essentially, that he engaged in "insurrection or rebellion against the" United States or gave "aid or comfort to the enemies thereof" (U.S. Constitution Amendment XIV, Section 3).
Steve Schmidt has suggested that the Governor’s of Blue States like Illinois and California act under their State Constitution s to establish state militias like the Texas Rangers, which cannot be federalized and which presumably can resist the invasion of federalized irregular or regular forces. Trump’s position is that his invocation of Insurrection Act is unreviewable. If Trump is right, the Schmidt proposal if exercised sufficiently in advance might be the last line of defense for a State otherwise uninterested in the President’s uninvited intrusion. If the Court rules against Illinois in this case then the Schmidt proposal, which I thought improvident and imprudent at the moment may be all that is left to the Blue States where their Constitutions permit. Thoughts?
If the Posse Comitatus act forbids the use of the regular forces for Law Enforcement purposes, wouldn't that automatically trigger (3) by it's very existence? It forecloses the use of the military to "execute the law." The only valid path should be Insurrection Act > § 12406(2) > § 12406(3). Skipping the first two should preclude (3) from being invoked because of the Posse Comitatus Act; which also is an indicator that the language of (3) must change, because as read on its face and in isolation, the Posse Comitatus Act makes it self-executing (I think that's the term?).
By that logic, the President can federalize the National Guard at any time and for any reason *other than* when the Insurrection Act has been invoked. Not only would that render 12406(1) and (2) surplusage, but it would turn these authorities (and the history they reflect) entirely on their head.
Well, it wouldn't be the first time that conflicts are found that rendered things surplusage. Two statutes 100 years apart, passed with different purposes in mind; and an Executive Branch looking to gain any advantage it possibly can, regardless of how well its interpretation reflects the history of the acts it seeks to leverage. Not saying it should stand up to scrutiny, but the fact that the Insurrection act has more significant hurdles to invoke, and the Executive chose this statute to attempt to carry out its' aims as opposed to the Insurrection Act, seems to indicate they view the two as disconnected enough that 12406 would present the ability to bypass the Insurrection Act.
I mean, that completely neglects the extent to which 12406 was enacted to *harmonize* the new National Guard system with the Insurrection Act. But yes, if a court were to read the plain text of the statute without regard to either (1) the preposterous implications; or (2) the clear contextual evidence to the contrary, we'd have problems.
Fair enough, appreciate your willingness to provide that context and your views on my question!