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.
Steve Vladeck, you did it again. You answered the questions I was asking myself, and which I had not seen answered in any of the other prior analysis about this case that I had read. Specifically, what about Justice Kavanaugh’s point about the potential need to federalize the National Guard to serve protective purposes in the event of an attack on government buildings? Your answer makes clear that this is really a canard: the National Guard can still be deployed for protective purposes, upon to, and under the command of, the relevant governor. I also had been wondering whether any of the dissenting justices’ procedural point was valid and had not seen that addressed elsewhere. Your answer addresses that as well, revealing that argument for the weak and hypocritically deployed maneuver that it is. I always learn so much from your posts. A very good week for Georgetown Law professors! Thank you!!
I agree with your takeaways from the decision to deny Trump a stay. I have written separately on the significance of Justice Kavanaugh’s enigmatic concurrence. Is Kavanaugh stepping back from the brink on potential Fourth Amendment violations? You put it best as a possible mea culpa for the damage Kavanaugh caused in the Los Angeles case. Time will tell.
Small note. The most recent ruling from the Supreme Court on the Party Presentation Principle was actually in Clark v. Sweeney, a per curiam released a few weeks ago. In Clark, the Supreme Court reversed the lower court for granting a habeas petition on the basis of an argument never raised by the appellant.
As a longer note, and in addition to Professor Bray's reasons for why the principle was not violated here, Supreme Court precedent favors reaching the argument raised by the amicus, despite the party's concessions.
First, First National Bank of Oregon v. Independent Insurance Agents of America, Inc., 508 U.S. 439 (1993) appears to squarely control. In Oregon, the lower court reached an issue neither party contested - the validity of a federal statute - and decided the case according to its belief that the law itself was no longer in force. Before reaching the merits of the dispute, the Supreme Court praised the DC Circuit's decision to assess whether the underlying law was valid in Part II of its opinion. It held that the lower court did not abuse its discretion because "'[w]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law,'" Id. at 446 (quoting Kamen v. Kemper Financial Services, Inc., 500 U. S. 90, 99 (1991)). In the application, the parties agreed that "regular forces" could apply to civilian law enforcement. However, a majority of the Court disagreed and believed the "proper construction of governing law" was that the term applied to the regular active-duty military forces.
Second, the principle of party presentation may operate differently for cases concerning the exercise of equitable authority. The Supreme Court has addressed party presentation in Clark v. Sweeney, United States v. Sineneng-Smith, and United States v. Greenlaw. All three cases were criminal cases (or derivative criminal cases such as a habeas petition) where federal courts generally cannot exercise any equitable power. As one maxim of Equity puts it, "Equity follows the law" and reversing a preliminary injunction on the basis of an erroneous interpretation of the law would violate this maxim. "Courts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law." INS. v. Pangilinan, 486 U.S. 875, 883 (1988) (quoting Hedges v. Dixon County, 160 U. S. 182, 192 (1893) (citation modified)).
Third, for similar reasons as above, the principle may operate differently for civil cases generally. For instance, in Arcadia v. Ohio Power Co., the Supreme Court reached beyond the issues briefed and presented by the parties to address "another question antecedent to . . . and ultimately dispositive of the present dispute...." 498 U.S. 73, 77 (1990).
Chief Justice John Marshall writing for the Court in Marbury v. Madison in 1803 specifically addressed the great significance of the oath required by Article VI of our Constitution, and their pronouncements necessarily are equally relevant to the oath required by 5 U.S.C. § 3331 and any other relevant law:
"[I]t is apparent, that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character."
Any person violating the oath in Article VI, 5 U.S.C. § 3331 or other federal or state law prescribing an oath to support our Constitution commits “worse than solemn mockery” of our Constitution, and any person who dares “take this oath” without believing it commits “a crime.”
“Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of [any] legislature” (any act of any public servant) “repugnant to the constitution, is void.”
Obviously, “the constitution is to be considered, in court, as a paramount law,” so courts cannot “close their eyes on the constitution, and see only [some purported] law” that might appear to contradict or appear to authorize violating our Constitution.
Any purported court “doctrine” to the contrary “would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory.” It “thus reduces to nothing what we have deemed the greatest improvement on political institutions—a written constitution” that was ratified by the People to be the paramount law of the land.
The most important aspect of the so-called Party Presentation Principle is that any such principle must yield to the plain meaning of the plain text of our Constitution. Article VI powerfully emphasizes that our “Constitution” is the paramount part of “the supreme Law of the Land" and absolutely all legislators and "all executive and judicial Officers” are “bound” to “support [our] Constitution” in all official conduct. No principle is more powerful or more important than the principles stated in the plain text of our Constitution.
As a lawyer, I think party presentation is super important. I don't ever want to lose to an argument not in the briefing that the judge picked up themselves and thought was super clever even though nobody argued it. So there should actually be a very strong non hypocritical rule that we don't do this, no matter how clever or even "right" the argument is. Especially since parties and their lawyers may have very good reasons for not presenting an argument.
But... that's not what happened in Trump v. Illinois. Rather Lederman made his argument and... the Court asked the parties to brief it. It then WAS presented by the parties. It seems to me THAT'S fine.
It only would have violated party presentation had the Respondents said "Lederman is full of it, we are not making that argument". In that situation, the Court shouldn't adopt it no matter how good it is.
I’m not comfortable with the government adopting an interpretation of a statute that should be obvious to everyone is wrong, so long as the opposing party acquiesces. In that case, who cares whether the parties have good reason to pursue this strategy? Especially when the ramifications will be more widely felt, in this case, Guard members who may be subject to call-up that’s not authorized.
Because court cases are controversies between parties, and the courts are not Roving Commissioners of Everything That Is Good And Right but rather the decisionmakers in disputes between actual parties. What the parties submit for decision is important and arguably delimits the Court's Article III power.
We enforce Article III all the time by denying standing or declaring mootness or ripeness problems in cases where the public might benefit from a decision, and we do so because courts' power to adjudicate is triggered only by an actual dispute between parties with stakes in the outcome.
Well, this is part of the same thing. It's the parties' dispute and they should have a lot of deference in terms of how they frame it.
Does it strike you that the majority issued a relatively lengthy opinion AND all justices wrote or joined an opinion in a case denying relief to the Administration while the same COURT has never written so extensively AND all justices wrote or joined a relatively lengthy opinion in a case where the Court denied relief to private citizens or States? Is there a double standard here?
My initial reaction was: Justice Alito seems to want to be a district judge--if only we could accommodate him!
Notably, Alito cites the "No units will respond to this" call in support of the proposition that local police declined to aid the feds, something that it appears was part of false information provided by the Solicitor General (presumably recklessly rather than deliberately) as laid out in the NYT (https://www.nytimes.com/2025/11/25/us/trump-supreme-court-national-guard-chicago-errors.html) and perhaps elsewhere. Such are the risks of casual factual analysis.
James Madison in January 1788 wrote something about the rights (later) secured by the Second Amendment (which Madison and others in the First Congress wrote and proposed in 1789) in a way that sheds light on the unconstitutionality of Trump's abuse of the National Guard here.
In Federalist No. 46, Madison addressed issues that are relevant to the Court's conduct here and relevant more generally to the Second Amendment. Madison viewed the individual right to keep and bear arms as a sort of sword of Damocles dangling over the head of federal officials. He saw the individual right to keep and bear arms as essential to the moral courage and efficacy of our public servants in state governments in helping secure our rights against federal officials.
Highly relevant to the case before the Court, Madison emphasized that the standing army envisioned in 1788-1789 was "an army of [no] more than twenty-five or thirty thousand men" who would be supported by (or potentially find themselves facing) "militia amounting to near half a million of citizens with arms in their hands."
From Federalist 46:
Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. . . . Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people.
Thank you for clarifying the very issue I raised with a friend last night. And putting the language of the opinion back in front of our eyes was very helpful. Happy New Year.
The party presentation principle assumes that parties are equally well represented and that inevitably leads to the correct results. But that is seldom true and at the Supreme Court level could and has led to egregiously wrong results. The goal is justice and if the party presentation principle has to be ignored, so be it. Indeed, the opportunity to consider an amicus brief assumes that the party presentation principle does not necessarily lead to right results. And by the way like the major questions doctrine the party presentation principle isn’t in the constitution or any statute, just a device that may or not be helpful in reaching a result that someone who pretends to be principled wants anyway.
Interesting that the dissenters did not embrace any of the government’s arguments with respect to the meaning of “regular forces,” but at least one of them would have found the “unable” prong met if regular forces were prevented by the Posse Comitatus Act from executing the law (or at least thought this was a difficult question that shouldn’t have been addressed). The majority’s rejection of that view ought to make it more difficult to deploy NG to get around the PCA. What effect does the holding have on the planned NG civil disturbance rapid reaction force (or whatever they were calling it)? I’m not sure what activation authority that entails.
It seems to me the president can order the creation of such forces in each State Guard, but cannot order them deployed absent the circumstances delineated in the Court's finding. In other words, the regular armed forces must have been authorized in accordance with law, but failed to control the disorder.
This is not only an unlikely situation, but makes a mockery of the term "rapid reaction".
It seems it would be up to the governor, unless Congress has used its authority to provide for organizing militia in such a way as to permit it. But they couldn’t be ordered to deploy in advance, which yeah, sort of defeats the purpose.
Amanda Frost has a great piece, from back in 2009, on what is now, at least in part, flying under the "party presentation principle" banner. It's called "The Limits of Advocacy," and here's a link:
Another way to look at it would be that the court should be under less obligation to explain a decision to decline to overturn the circuit court ruling than a decision to overturn it. In either case, a marked contrast.
One of the issues that mucks up the waters in these cases seems to be that of federal vs state responsibilities. The issue of protecting federal buildings has recently come up in conversations with some current and fellow former local legislators and administrators. The consensus was that these facilities, primarily the courthouses and FBI offices but also ICE detention centers, could be considered on par with any other office building. The state, city, or county is the host, the federal facilities are the guests. In that interpretation of the relative relationship between local and federal responsibilities, it seems clear that it is the local, and only the local (and I’m including the state in defining what’s “local”) safety forces that need be taxed with the responsibility of protecting federal facilities. Only the local/state administrations, therefore, should be able to activate their NGs, and only if they request further assistance from the federal government or cooperating other states should such assistance be deemed necessary by the local authorities.
The unreviewability of Trump's orders, under the guise of the unitary executive hypothesis, is another bullet the Court deliberately dodged in its decision. They don't want to come near that question unless they have absolutely no way out.
Steve Vladeck, you did it again. You answered the questions I was asking myself, and which I had not seen answered in any of the other prior analysis about this case that I had read. Specifically, what about Justice Kavanaugh’s point about the potential need to federalize the National Guard to serve protective purposes in the event of an attack on government buildings? Your answer makes clear that this is really a canard: the National Guard can still be deployed for protective purposes, upon to, and under the command of, the relevant governor. I also had been wondering whether any of the dissenting justices’ procedural point was valid and had not seen that addressed elsewhere. Your answer addresses that as well, revealing that argument for the weak and hypocritically deployed maneuver that it is. I always learn so much from your posts. A very good week for Georgetown Law professors! Thank you!!
I agree with your takeaways from the decision to deny Trump a stay. I have written separately on the significance of Justice Kavanaugh’s enigmatic concurrence. Is Kavanaugh stepping back from the brink on potential Fourth Amendment violations? You put it best as a possible mea culpa for the damage Kavanaugh caused in the Los Angeles case. Time will tell.
Small note. The most recent ruling from the Supreme Court on the Party Presentation Principle was actually in Clark v. Sweeney, a per curiam released a few weeks ago. In Clark, the Supreme Court reversed the lower court for granting a habeas petition on the basis of an argument never raised by the appellant.
As a longer note, and in addition to Professor Bray's reasons for why the principle was not violated here, Supreme Court precedent favors reaching the argument raised by the amicus, despite the party's concessions.
First, First National Bank of Oregon v. Independent Insurance Agents of America, Inc., 508 U.S. 439 (1993) appears to squarely control. In Oregon, the lower court reached an issue neither party contested - the validity of a federal statute - and decided the case according to its belief that the law itself was no longer in force. Before reaching the merits of the dispute, the Supreme Court praised the DC Circuit's decision to assess whether the underlying law was valid in Part II of its opinion. It held that the lower court did not abuse its discretion because "'[w]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law,'" Id. at 446 (quoting Kamen v. Kemper Financial Services, Inc., 500 U. S. 90, 99 (1991)). In the application, the parties agreed that "regular forces" could apply to civilian law enforcement. However, a majority of the Court disagreed and believed the "proper construction of governing law" was that the term applied to the regular active-duty military forces.
Second, the principle of party presentation may operate differently for cases concerning the exercise of equitable authority. The Supreme Court has addressed party presentation in Clark v. Sweeney, United States v. Sineneng-Smith, and United States v. Greenlaw. All three cases were criminal cases (or derivative criminal cases such as a habeas petition) where federal courts generally cannot exercise any equitable power. As one maxim of Equity puts it, "Equity follows the law" and reversing a preliminary injunction on the basis of an erroneous interpretation of the law would violate this maxim. "Courts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law." INS. v. Pangilinan, 486 U.S. 875, 883 (1988) (quoting Hedges v. Dixon County, 160 U. S. 182, 192 (1893) (citation modified)).
Third, for similar reasons as above, the principle may operate differently for civil cases generally. For instance, in Arcadia v. Ohio Power Co., the Supreme Court reached beyond the issues briefed and presented by the parties to address "another question antecedent to . . . and ultimately dispositive of the present dispute...." 498 U.S. 73, 77 (1990).
Chief Justice John Marshall writing for the Court in Marbury v. Madison in 1803 specifically addressed the great significance of the oath required by Article VI of our Constitution, and their pronouncements necessarily are equally relevant to the oath required by 5 U.S.C. § 3331 and any other relevant law:
"[I]t is apparent, that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character."
Any person violating the oath in Article VI, 5 U.S.C. § 3331 or other federal or state law prescribing an oath to support our Constitution commits “worse than solemn mockery” of our Constitution, and any person who dares “take this oath” without believing it commits “a crime.”
“Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of [any] legislature” (any act of any public servant) “repugnant to the constitution, is void.”
Obviously, “the constitution is to be considered, in court, as a paramount law,” so courts cannot “close their eyes on the constitution, and see only [some purported] law” that might appear to contradict or appear to authorize violating our Constitution.
Any purported court “doctrine” to the contrary “would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory.” It “thus reduces to nothing what we have deemed the greatest improvement on political institutions—a written constitution” that was ratified by the People to be the paramount law of the land.
The most important aspect of the so-called Party Presentation Principle is that any such principle must yield to the plain meaning of the plain text of our Constitution. Article VI powerfully emphasizes that our “Constitution” is the paramount part of “the supreme Law of the Land" and absolutely all legislators and "all executive and judicial Officers” are “bound” to “support [our] Constitution” in all official conduct. No principle is more powerful or more important than the principles stated in the plain text of our Constitution.
As a lawyer, I think party presentation is super important. I don't ever want to lose to an argument not in the briefing that the judge picked up themselves and thought was super clever even though nobody argued it. So there should actually be a very strong non hypocritical rule that we don't do this, no matter how clever or even "right" the argument is. Especially since parties and their lawyers may have very good reasons for not presenting an argument.
But... that's not what happened in Trump v. Illinois. Rather Lederman made his argument and... the Court asked the parties to brief it. It then WAS presented by the parties. It seems to me THAT'S fine.
It only would have violated party presentation had the Respondents said "Lederman is full of it, we are not making that argument". In that situation, the Court shouldn't adopt it no matter how good it is.
I’m not comfortable with the government adopting an interpretation of a statute that should be obvious to everyone is wrong, so long as the opposing party acquiesces. In that case, who cares whether the parties have good reason to pursue this strategy? Especially when the ramifications will be more widely felt, in this case, Guard members who may be subject to call-up that’s not authorized.
Because court cases are controversies between parties, and the courts are not Roving Commissioners of Everything That Is Good And Right but rather the decisionmakers in disputes between actual parties. What the parties submit for decision is important and arguably delimits the Court's Article III power.
We enforce Article III all the time by denying standing or declaring mootness or ripeness problems in cases where the public might benefit from a decision, and we do so because courts' power to adjudicate is triggered only by an actual dispute between parties with stakes in the outcome.
Well, this is part of the same thing. It's the parties' dispute and they should have a lot of deference in terms of how they frame it.
Does it strike you that the majority issued a relatively lengthy opinion AND all justices wrote or joined an opinion in a case denying relief to the Administration while the same COURT has never written so extensively AND all justices wrote or joined a relatively lengthy opinion in a case where the Court denied relief to private citizens or States? Is there a double standard here?
Yes-
My initial reaction was: Justice Alito seems to want to be a district judge--if only we could accommodate him!
Notably, Alito cites the "No units will respond to this" call in support of the proposition that local police declined to aid the feds, something that it appears was part of false information provided by the Solicitor General (presumably recklessly rather than deliberately) as laid out in the NYT (https://www.nytimes.com/2025/11/25/us/trump-supreme-court-national-guard-chicago-errors.html) and perhaps elsewhere. Such are the risks of casual factual analysis.
James Madison in January 1788 wrote something about the rights (later) secured by the Second Amendment (which Madison and others in the First Congress wrote and proposed in 1789) in a way that sheds light on the unconstitutionality of Trump's abuse of the National Guard here.
In Federalist No. 46, Madison addressed issues that are relevant to the Court's conduct here and relevant more generally to the Second Amendment. Madison viewed the individual right to keep and bear arms as a sort of sword of Damocles dangling over the head of federal officials. He saw the individual right to keep and bear arms as essential to the moral courage and efficacy of our public servants in state governments in helping secure our rights against federal officials.
Highly relevant to the case before the Court, Madison emphasized that the standing army envisioned in 1788-1789 was "an army of [no] more than twenty-five or thirty thousand men" who would be supported by (or potentially find themselves facing) "militia amounting to near half a million of citizens with arms in their hands."
From Federalist 46:
Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. . . . Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people.
Gorsuch's concern for federal power is selective.
Thank you for clarifying the very issue I raised with a friend last night. And putting the language of the opinion back in front of our eyes was very helpful. Happy New Year.
The party presentation principle assumes that parties are equally well represented and that inevitably leads to the correct results. But that is seldom true and at the Supreme Court level could and has led to egregiously wrong results. The goal is justice and if the party presentation principle has to be ignored, so be it. Indeed, the opportunity to consider an amicus brief assumes that the party presentation principle does not necessarily lead to right results. And by the way like the major questions doctrine the party presentation principle isn’t in the constitution or any statute, just a device that may or not be helpful in reaching a result that someone who pretends to be principled wants anyway.
Interesting that the dissenters did not embrace any of the government’s arguments with respect to the meaning of “regular forces,” but at least one of them would have found the “unable” prong met if regular forces were prevented by the Posse Comitatus Act from executing the law (or at least thought this was a difficult question that shouldn’t have been addressed). The majority’s rejection of that view ought to make it more difficult to deploy NG to get around the PCA. What effect does the holding have on the planned NG civil disturbance rapid reaction force (or whatever they were calling it)? I’m not sure what activation authority that entails.
It seems to me the president can order the creation of such forces in each State Guard, but cannot order them deployed absent the circumstances delineated in the Court's finding. In other words, the regular armed forces must have been authorized in accordance with law, but failed to control the disorder.
This is not only an unlikely situation, but makes a mockery of the term "rapid reaction".
It seems it would be up to the governor, unless Congress has used its authority to provide for organizing militia in such a way as to permit it. But they couldn’t be ordered to deploy in advance, which yeah, sort of defeats the purpose.
Amanda Frost has a great piece, from back in 2009, on what is now, at least in part, flying under the "party presentation principle" banner. It's called "The Limits of Advocacy," and here's a link:
https://scholarship.law.duke.edu/dlj/vol59/iss3/2/
Where can I find this “Chief Justice Roberts’s Year-End Report on the Federal Judiciary (for more on this “tradition,” see this older post)????
Apologies; I meant to link to this post:
https://www.stevevladeck.com/p/8-the-chief-justices-year-end-report
This year's report will drop sometime Wednesday night.
Another way to look at it would be that the court should be under less obligation to explain a decision to decline to overturn the circuit court ruling than a decision to overturn it. In either case, a marked contrast.
Oops-
This was supposed to be a reply to Michael Schilling
One of the issues that mucks up the waters in these cases seems to be that of federal vs state responsibilities. The issue of protecting federal buildings has recently come up in conversations with some current and fellow former local legislators and administrators. The consensus was that these facilities, primarily the courthouses and FBI offices but also ICE detention centers, could be considered on par with any other office building. The state, city, or county is the host, the federal facilities are the guests. In that interpretation of the relative relationship between local and federal responsibilities, it seems clear that it is the local, and only the local (and I’m including the state in defining what’s “local”) safety forces that need be taxed with the responsibility of protecting federal facilities. Only the local/state administrations, therefore, should be able to activate their NGs, and only if they request further assistance from the federal government or cooperating other states should such assistance be deemed necessary by the local authorities.
The unreviewability of Trump's orders, under the guise of the unitary executive hypothesis, is another bullet the Court deliberately dodged in its decision. They don't want to come near that question unless they have absolutely no way out.