199. Four Takeaways From the National Guard Ruling

A deep dive into last Tuesday's ruling in which a 6-3 majority of the Court stopped the Trump administration from deploying federalized National Guard troops into and around Chicago.

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I wanted to use today’s “Long Read” to take a deep dive into the Court’s ruling last Tuesday in Trump v. Illinois, in which a majority of the justices left in place lower-court rulings barring President Trump from deploying federalized National Guard troops into and around Chicago in response to anti-ICE protests. The decision is, without question, the most significant setback for the Trump administration at the Supreme Court at least since the justices repudiated its effort to use the Alien Enemies Act of 1798 for summary, mass removals back in April. It also features an enigmatic concurrence by Justice Kavanaugh and dissents from Justices Alito and Gorsuch that have been the basis for significant criticism of the Court from the right—critiques that, in my view, are remarkably overblown and/or hypocritical. To make a long story short(er), although I still think the majority could (and should) have explained its ruling in a bit more detail, the Court got a very big one right—in ways that will almost certainly make it more difficult, as it should be, for the Trump administration to attempt to militarize domestic law enforcement based on dubious factual predicates.

More on all of this below. But first, the (little) other news.

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On the Docket

Not surprisingly, last week was a very quiet one at the Court. Tuesday’s ruling in the Illinois National Guard case was the only action by the full Court; and the only other action of interest was Monday’s grant of an administrative stay by Justice Alito in a long-running labor dispute between the company that owns the Pittsburgh Post-Gazette and the union representing many of its employees. Alito’s stay temporarily pauses an injunction the Third Circuit had issued back in March(!) that had put into effect an order by the National Labor Relations Board siding with the union, and which the Third Circuit sustained in November. The question for Alito (or the full Court) is whether to keep that ruling on hold pending the Post-Gazette’s forthcoming petition for certiorari. Alito ordered the union to respond by next Monday at 5 p.m. ET, so we’re not likely to hear anything further about this dispute before then.

Turning to this week, we don’t expect anything from the full Court; there are no emergency applications from the Trump administration that are ripe for a ruling,¹ and no other pending applications that appear to require a decision before next week. Wednesday evening, a few hours before the ball drops, we should get Chief Justice Roberts’s Year-End Report on the Federal Judiciary (for more on this “tradition,” see this older post). But that should be the only news out of One First Street between now and the end of 2025.

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The One First “Long Read”: Four Key Points From/About the National Guard Ruling

I’ve written quite a bit already about Trump v. Illinois, including this post about the stakes, and this post about the supplemental briefing order the Court issued on October 29. For folks who could use more background on how we got here, I’d encourage you to check those out. In a nutshell, though, the question before the Court was whether to put on hold lower-court rulings that had barred the deployment into and around Chicago of federalized National Guard troops under an obscure 1908 statute, codified today at 10 U.S.C. § 12406.

In a two-and-a-half-page order, a 6-3 majority² left those rulings in place. The last two paragraphs of the order provide all of the analysis, and are worth quoting in full (with some citations omitted):

We conclude that the term “regular forces” in §12406(3) likely refers to the regular forces of the United States military. This interpretation means that to call the Guard into active federal service under §12406(3), the President must be “unable” with the regular military “to execute the laws of the United States.” Because the statute requires an assessment of the military’s ability to execute the laws, it likely applies only where the military could legally execute the laws. Such circumstances are exceptional: Under the Posse Comitatus Act, the military is prohibited from “execut[ing] the laws” “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” So before the President can federalize the Guard under §12406(3), he likely must have statutory or constitutional authority to execute the laws with the regular military and must be “unable” with those forces to perform that function.

At this preliminary stage, the Government has failed to identify a source of authority that would allow the military to execute the laws in Illinois. The President has not invoked a statute that provides an exception to the Posse Comitatus Act. Instead, he relies on inherent constitutional authority that, according to the Government, allows him to use the military to protect federal personnel and property. But the Government also claims—consistent with the longstanding view of the Executive Branch—that performing such protective functions does not constitute “execut[ing] the laws” within the meaning of the Posse Comitatus Act. If that is correct, it is hard to see how performing those functions could constitute “execut[ing] the laws” under §12406(3). Thus, at least in this posture, the Government has not carried its burden to show that §12406(3) permits the President to federalize the Guard in the exercise of inherent authority to protect federal personnel and property in Illinois. We need not and do not address the reviewability of findings made by the President under §12406(3) or any other statute.

In other words, the majority held that, as a matter of law, the government is unlikely to prevail on the argument that it can use § 12406(3) to federalize National Guard troops without having first attempted to execute the laws with “regular” troops under other statutory or constitutional authorities. And, in the process, the Court strikingly just ignored the Trump administration’s other argument—that § 12406(2) also authorized the deployment because of a “rebellion” in Chicago. There’s a lot to say about this decision; it might be most helpful to break it into the following four sets of observations/takeaways.

I. What are the Direct (and Longer-Term) Implications of Tuesday’s Ruling?

Although the Court’s order was (correctly) written in terms of what’s “likely” to happen in this litigation, the majority’s interpretation of § 12406(3) is necessarily going to have downstream effects not just in this case, but in the other places where the Trump administration has attempted to deploy federalized National Guard troops under that authority (i.e., Portland and Los Angeles).³ If § 12406(3) can’t be utilized until and unless the President has been unable with “regular forces” to execute federal law, then none of these deployments can withstand legal scrutiny—for the simple reason that President Trump has not even tried to do so.

Of course, this leads to the question lots of folks have been asking about this argument since the Court first asked the parties to address it back in October—won’t that just bait President Trump into doing exactly that, and invoking the Insurrection Act so he can use the regular forces directly for civilian law enforcement? And isn’t that somehow worse than what was already happening under § 12406(3)?

My own view continues to be that there are two reasons why the answer is likely to be “no,” at least for now. First, if the circumstances on the ground in Chicago or Portland or Los Angeles actually justify (or justified) an invocation of the Insurrection Act, then there was nothing standing in the way of Trump administration invoking it already—even before last Tuesday’s ruling by the Supreme Court. There’s no argument that the legal unavailability of federalized National Guard troops under § 12406(3) somehow bolsters the factual predicate for invoking the Insurrection Act. To the contrary, the Trump administration’s novel interpretation of § 12406(3) was an attempt to deploy federalized troops into our cities without running the legal or political gauntlet of invoking the Insurrection Act for the first time in 33 years. That was a bug of these deployments, not a feature.

Second, and speaking of that gauntlet, the Justice Department’s own position has long been that the Insurrection Act requires much more than even the Trump administration’s (deeply contestable) view of the facts on the ground in these three jurisdictions. As I noted back in November, under a 1964 memorandum by then-Deputy Attorney General Katzenbach, the federal government has only used the Insurrection Act over state objections historically when “those engaging in violence are either acting with the approval of state authorities or have, like the Klan in the 1870s, taken over effective control of the area involved.” Even if the political constraints on invoking the statute would be less applicable to President Trump than they have been to his predecessors, and even if courts (or, at least, the Supreme Court) would give significant deference to factual findings relating to these criteria, the criteria are still meaningful—and are a likely reason why the Trump administration, which has not exactly been shy about dubious interpretations of old statutes, has yet to try this one.

Finally, although some commentators have breezily suggested that we should prefer a scenario in which federalized National Guard troops are called out before the regular forces (and that Congress must have intended this order of battle when it enacted § 12406), it seems to me that this viewpoint wholly fails to account for the primary structural (and historical) role of governors in responding to domestic crises. The way our laws are set up—and the way they’ve worked for the entire history of the National Guard—is that the first military forces to be used in a domestic crisis are supposed to be un-federalized National Guard troops, under the command and control of the relevant state governor (much like Minnesota Governor Tim Walz calling out the Minnesota National Guard in response to the George Floyd protests in 2020).⁴ We only get to the question of federal authority (and we only should get to the question of federal authority) when local/state civilian and military personnel are either unable or unwilling to restore order. In my view, the biggest upside of Tuesday’s ruling is to restore this prevailing understanding.

II. What Should We Make of Justice Kavanaugh’s Concurrence?

Justice Kavanaugh wrote an … enigmatic … concurring opinion, which he styled as concurring “in the judgment” (the first time I can recall seeing an opinion respecting an order on an emergency application labeled that way). The opinion seems intended to lay down two very different markers. First, it attempts to carve out more room for the President’s “protective power” (that is, the President’s inherent constitutional authority to use military forces to protect federal property and personnel, the scope of which is deeply unsettled) than the majority’s order. Kavanaugh reads the majority order as separating the protective power from “execut[ing] the laws,” and, thus, as prohibiting the President from using § 12406(3) even in circumstances in which troops are needed to protect, in his example, a federal courthouse. Thus, he suggests, the ruling may well “cause the President to use the U. S. military more than the National Guard to protect federal personnel and property in the United States.”

On this point, again, this argument is inverting the traditional understanding of how governments respond to crises. In Justice Kavanaugh’s mob-storming-the-Philadelphia-courthouse example, the whole point is that the first responders, if local police and court security officers are inadequate, would be the Pennsylvania National Guard under the command of Governor Shapiro, not the President. And if the Pennsylvania National Guard is either unwilling or unable to quell the threat, then federalizing them isn’t going to help, either. Again, I think the majority’s (short) reasoning is far more faithful to the original (and historical) understanding of the relationships of these authorities than the alternatives.

Second, and moving in the other direction, there’s the curiousness of footnote 4, where, even though it has nothing to do with the question before the Supreme Court, Justice Kavanaugh decided to return, however elliptically, to his Vasquez Perdomo concurrence, which at least appeared to greenlight immigration stops based on constitutionally prohibited considerations. In his words:

The basic constitutional rules governing that dispute are longstanding and clear: The Fourth Amendment requires that immigration stops must be based on reasonable suspicion of illegal presence, stops must be brief, arrests must be based on probable cause, and officers must not employ excessive force. Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity. . . . This application does not require us to delve into the parties’ underlying dispute and to determine whether any particular immigration encounter or series of encounters in Illinois has violated those basic constitutional principles.

In this passage, Justice Kavanaugh appears to be signaling (or, at least, trying to signal) that he doesn’t think his opinion in Vasquez Perdomo foreordains challenges to immigration stops elsewhere. Maybe it doesn’t, but (1) the damage there has already been done; and (2) the fact that a majority of the Court stayed the TRO in that case unfortunately remains far more probative than a cryptic footnote in a solo concurrence. If this was meant to be a mea culpa, well, it shouldn’t need a decoder ring.

III. What is the “Party Presentation Principle,” and Was It Violated Here?

Perhaps the most striking thing about both dissenting opinions is how much they each focused on a procedural objection—that, by relying on an argument advanced principally by an amicus (to wit, my Georgetown colleague Marty Lederman), the majority violated the “party presentation principle.”

Notre Dame law professor Sam Bray has a (typically) thoughtful post explaining what the party presentation principle is, and why it wasn’t violated here. I’ll just pile on with two brief, additional points.

First, it’s not at all clear that the party presentation principle should apply to emergency applications at all. The relevant question for purposes of a stay pending appeal is whether the applicant is likely to succeed on the merits. If a majority of the Court is likely to rule against the applicant, and has the jurisdictional authority to do so, then it seems like it ought not to matter whether the argument on which a majority has coalesced has been fully and fairly presented at the application stage. The question, instead, is whether the Court would be foreclosed from considering that argument at the merits stage. Suffice it to say, neither Justice Alito nor Justice Gorsuch argue as much—and for good reason.

Second, and in any event, there’s more than a little chutzpah in these justices invoking the party presentation principle here. If that principle were an “inexorable command” that limited the Court only to those arguments advanced by the parties at the first opportunity, well, consider Dobbs. Here’s Mississippi’s cert. petition in that case, filed on June 15, 2020. You’ll be hard-pressed to find where the state asks the Court to revisit Roe (or Casey), or to hold that the Constitution categorically does not protect a right to a pre-viability abortion. Indeed, on page 5, the petition expressly disclaims any such request. It was only after Justice Ginsburg died and was replaced by Justice Barrett, and the Court subsequently granted certiorari, that Mississippi set its sights on Roe and Casey. And of course, the author of the majority opinion ultimately relying upon arguments that Mississippi never made in its cert. petition was … Justice Alito.

In my view, the “party presentation principle” is perhaps best analogized to the Court’s frequent refrain that it is “a Court of review, not first view”—it’s an idea on which the justices sometimes rely to justify avoiding arguments that they don’t want to consider, but it is by no means a limit on their ability to consider those arguments when they want to. The real work here is the merits arguments—where, for the reasons described above, I think the majority has the better of the statutory analysis.

IV. One Last Thought About the Dissenters…

Finally, it’s worth pausing for a moment to reflect on the ramifications of both the Alito and Gorsuch dissents. Both opinions would’ve granted emergency relief to the Trump administration based upon the justices’ own view of the facts—never mind the detailed analysis of both the district court and the Seventh Circuit. As Justice Gorsuch writes, “I believe the declarations federal law enforcement officials submitted below support the grant of a stay for substantially the reasons given in Parts I–A, B–1, C, and D of Justice Alito’s opinion.”

There are two different problems here, and it’s worth articulating both of them. First, as a matter of long-settled appellate procedure, the justices just should not be basing their votes on one party’s evidence in a district court without even analyzing the district court’s contrary findings. I’m a broken record at this point, but as was even more visible in the Texas redistricting ruling, these justices don’t even bother applying the correct standard of review (“clear error”) to explain why the district court was wrong to discredit these declarations; they just act as if they are the district court—and the contrary determinations of lower courts in these cases are entirely irrelevant.

Second, and more specifically, that these justices are still taking these declarations at face value at this stage in the litigation (and, frankly, in the country) is a deeply worrying, if entirely unsurprising, sign of what we have to look forward to in future Trump administration cases. There are lots of reasons to be more than a little skeptical of factual proffers made by DHS officials in these cases—many of which have been specifically disproven. To nevertheless accept them uncritically is thus not just to defy settled principles of appellate procedure; it is to suggest that these three justices are incapable of being persuaded that this administration will lie when it matters (and even when it doesn’t)—or that its lies should not form the basis for even ordinary legal relief, let alone emergency interventions like the one Thomas, Alito, and Gorsuch would’ve made here.

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SCOTUS Trivia: The Party Presentation Principle in Sineneng-Smith

This may not count as trivia, but it’s a point that has long bothered me about the Court’s most recent (and most aggressive) articulation of the “party presentation principle” in United States v. Sineneng-Smith: In that case, the Court vacated a Ninth Circuit ruling that had struck down part of an immigration statute on First Amendment grounds, not because the Court disagreed with the First Amendment analysis, but because it was an argument that hadn’t been made by the defendant.

There’s just one small problem: The argument that the Ninth Circuit had failed to follow the “party presentation principle” was … not presented by the Solicitor General as a ground for overturning the court of appeals’ ruling, either at the cert. stage or in the merits briefing. In other words, the Court’s most recent ruling relying upon the “party presentation principle” did so in a context in which the relevant party … had not invoked the party presentation principle as a ground for decision—therby violating the very principle it was supposedly enforcing.

Sigh.

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Have a great week, all, and especially my younger sister, Abi—who’s celebrating a birthday today, and definitely won’t see this.

1. Two of the Trump administration’s 32 emergency applications are still pending, but one (Trump v. Cook) has been deferred pending oral argument in January; and the other (Blanche v. Perlmutter) has been deferred pending the Court’s rulings in Trump v. Slaughter and in Cook.

2. Although I am usually loathe to assume a vote count based upon fewer than four public dissents, Justice Kavanaugh’s concurrence, which he frames as “in the judgment,” certainly seems to imply that at least five other justices (the Chief Justice and Justices Sotomayor, Kagan, Barrett, and Jackson) signed onto the text of the order. So for once, I think we can say with confidence that the ruling was 6-3.

3. The Washington, D.C. deployment is different—for reasons Judge Millett articulated in the D.C. Circuit’s December 17 ruling staying a district court decison that had blocked deployment of federalized National Guard troops in the nation’s capital.

4. Ditto the pre-National Guard reliance upon state militias—as I explained in my student note.