Bonus 183: Martin v. Mott

The Trump administration claims Justice Story's 1827 ruling establishes the President's unreviewable power to decide when domestic use of the military is needed. It doesn't come close to saying that.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, I put much of the weekly bonus issue behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

These days, there are always too many different things to write about. But I wanted to use today’s issue to highlight an important post from Tuesday by Professors Joshua Braver and John Dehn about Martin v. Mott—an 1827 decision by the Supreme Court that is often invoked by the Trump administration (and its supporters) for the proposition that the President’s determination that circumstances justify domestic use of the military is not subject to judicial review. Braver and Dehn (and a recent amicus brief by the Constitutional Accountability Center) explain, quite persuasively, why that issue was neither presented nor decided in Mott—and it’s worth reading their post (and CAC’s brief) in full. Indeed, I had already been planning to write about Martin—and was only too happy to be (largely) preempted.

Rather than replicate their analysis, below the fold, I take a step back—and try to underscore not just why Braver and Dehn are clearly correct, but the immense stakes of what may seem like a largely academic debate about a series of old cases. One need not look especially hard to find a sizeable disconnect between what President Trump and his supporters claim is happening in Portland, Chicago, and elsewhere, and what more reputable sources reflect. And we’re already seeing courts in cases arising out of the military deployments in those jurisdictions struggling over the extent to which they can decide who’s right. There are plenty of good reasons to believe that courts can—and should—answer that question. The relevant point for present purposes is that no prior Supreme Court case, especially Mott, says that they can’t.

For those who aren’t paid subscribers, we’ll be back Monday (if not sooner) with our regular coverage of the Supreme Court. For those who are, please read on.