Thoughts on the Interim Order in Trump v. Illinois
The administration loses but still has options for domestic military deployment
This essay is cross-posted at SCOTUSblog.
President Trump federalized the Illinois and Texas National Guard to protect federal personnel and property in and around Chicago. He relied on 10 U.S.C. § 12406(3), which authorizes Guard federalization if the president is “unable with the regular forces to execute the laws of the United States.” A federal district court enjoined the deployment, which the Supreme Court yesterday declined to stay.
The Court ruled that the term “regular forces” in § 12406(3) likely refers to the regular military. To call into service the Guard under § 12406(3), therefore, the president must show that he is “‘unable’ with the regular military” to execute U.S. law. Justice Kavanaugh noted in concurrence that this ruling might have sufficed to deny the stay since Trump made no such determination.
But the Court went further. It reasoned that because the Posse Comitatus Act bars military law enforcement absent express authorization, the president must identify a statutory or constitutional authority for the regular military to execute the laws—and then show inability to do so—before federalizing the Guard under § 12406(3). The government’s failure to meet that burden, the Court said, justified denying the stay.
Some thoughts on the decision, ordered from the particular and narrow to the broader implications for domestic military deployment:
1. As Dan Epps noted, the Court took its time in ruling on this application for an interim order. It did not treat the matter as an “emergency.”
2. The district court had adopted the central interpretation of “regular forces” that ultimately persuaded the Court. But Illinois and other respondents did not defend that interpretation on appeal until the Supreme Court called for additional briefing that was almost certainly sparked by this forceful amicus brief by Marty Lederman.
3. The Court’s order ruled on the “likely” outcome of novel and difficult questions of federal law without oral argument or regular briefing. This is now a standard feature of the interim orders docket. But it has been much criticized by many commentators who will support the Court’s order, and by justices who joined the order. Likewise, some of the dissenting justices’ process objections did not bother them in other interim order contexts.
The lesson: process complaints about interim orders are often influenced by, and subordinate to, interim order outcomes. This doesn’t mean the process complaints are meaningless. It just means they are often opportunistic. Every justice agrees, when the merits pull is strong enough, that brief and largely conclusory interim orders appropriately issue, even in important cases, on the basis of truncated briefing and deliberation and without oral argument.
4. I agree with Justice Kavanaugh that the Court’s interpretation of “unable” involved a “complicated and debatable statutory analysis.” (It was more complicated than I let on in my summary above, and I’m not sure of the right answer.) As Justice Gorsuch noted in dissent, the Court “has never decided a case about the meaning of § 12406(3), let alone explored its interaction with other statutes in the field or the Constitution.” Justice Gorsuch also noted the Court did not “have much help on many of these matters from the parties’ briefs before us.”
Why, therefore, didn’t the Court, as Justice Kavanaugh suggested, seek further briefing, hold oral argument, or grant certiorari before judgment? Who knows. Every aspect of the interim orders process—timing of decision, standards for decision, the questions to answer, the robustness of briefing, whether to have oral argument or grant certiorari, the form of the order, guidance on remand, and more—is discretion-laden.
5. Because the Court’s interim orders have vertical precedential effect, yesterday’s order should end the government’s § 12406(3) National Guard call-up not just in Illinois but in California and Oregon too. In that sense it is a major defeat for the Trump administration. But yesterday’s decision does not mean that Trump is out of options for domestic military deployment. Rather, as I wrote in October, he “has other more powerful legal authorities to deploy the Guard and regular armed forces in the domestic sphere”—options that the Court in yesterday’s order left open.
One option, I wrote earlier, is the “protective power”:
The protective power is the president’s inherent or independent Article II power to protect federal personnel, property, and functions. The key point is that the president can assert the protective power without reliance on Section 12406. He can deploy regular armed forces without any need to federalize the Guard. Presidents often have.
William Rehnquist, then head of the Office of Legal Counsel, wrote the leading executive branch opinion on the protective power in 1971. As Chris Mirasola explains in his outstanding definitive treatment of the issue, the protective power has a long pedigree in practice but an uncertain basis in Article II and Supreme Court case law. If the president relied on Article II alone to use regular armed forces for the protective function, it is hard to know what the Supreme Court would say about its validity or about the deference due to the president.
The Court discussed the protective power in yesterday’s order but did not take a view on it. If the government calls out the regular military to perform protective functions, we might get a first-ever Supreme Court ruling—at least since the nineteenth century decisions on which the government has long but precariously relied—on the nature and scope of the protective power.
A second and seemingly stronger option for Trump is to invoke the Insurrection Act, which authorizes the president to use the National Guard or the regular military in the domestic sphere in wide-ranging contexts, including (simplifying a great deal) as the president “considers necessary” to enforce federal law against unlawful “obstructions,” “combinations” or “assemblages” or to quell any “domestic violence” or “conspiracy” that impedes the enforcement of constitutional rights or even “the course of justice” under federal law.
The Insurrection Act provides the president with a number of potential advantages over federalizing the Guard under § 12406(3).
First, it authorizes deployment of the regular military in addition to the Guard. Second, its broadly worded triggers give the president wide discretion for its use. Third, a deployment under the Act skirts the Posse Comitatus Act bar by providing express authorization for the armed forces to engage in domestic law enforcement. Fourth, that enforcement authority is more robust than the protective power and applies beyond the immigration context as long as one of the Act’s vague predicates is met. Fifth, old precedents suggest that courts should give deference to the president’s determination that the Act’s predicates are met.
6. Yesterday’s defeat could provide “cover” for the Trump administration to go the Insurrection Act route. The central rationale for the Court’s order was that the government had not met its burden of demonstrating an affirmative authorization to use the regular military to enforce the law. Invocation of one of the Insurrection Act predicates would meet that burden. It would not be right for the administration to say “the Court made us do it”; but one can imagine the administration saying something like that nonetheless.
I do not mean to suggest that the administration will invariably win if it invokes the Insurrection Act. That depends on the facts on the ground and a slew of open questions under the Act and, possibly, the Constitution. Justice Gorsuch noted in dissent the “grave[]” question “[w]hen, if ever, may the federal government deploy the professional military for domestic law enforcement purposes consistent with the Constitution? See, e.g., Art. IV, § 4; Amdt. 14, § 5.” (emphasis supplied).
Nor do I predict that the administration will in fact invoke the Insurrection Act. Doing so brings some legal advantages but is politically very fraught at a time when the administration is encountering greater political headwinds. It might try the Article II regular military protective power gambit first the next time it claims to need to protect ICE facilities and functions.