The administration has appealed to the Supreme Court as challenges in other states mount.
The administration has appealed to the Supreme Court as challenges in other states mount.
W hile the Bolton indictment grabbed the attention of lawfare watchers on Thursday a more consequential development, nationally speaking, was the unanimous ruling by a three-judge panel of the Seventh Circuit, upholding the lower court’s injunction against President Trump’s attempt to deploy the National Guard in Illinois, over the objection of state officials (Illinois v. Trump).
The decision is important. The administration drew a three-judge panel that seemed favorable, including appointees of Presidents Bush 41, Obama, and Trump 45. At issue is whether the president has the authority to federalize and deploy the guard, under Section 12406 of law pertaining to the Guard (Title 10, U.S. Code), despite the objection of Governor J. B. Pritzker, Chicago Mayor Brandon Johnson, and other Illinois Democrats.
The administration asserted that the president’s authority under Section 12406 had been triggered because, in his view, in Chicago and its environs, “there is a rebellion or danger of a rebellion against the authority” of the federal government (§12406(2)); and “the President is unable with the regular forces to execute the laws of the United States” (emphasis added — as we’ll come to, there is controversy over what these terms in §12406(3) mean).
What Happened to That ‘Invasion’?
It’s worth pausing to note that the administration did not rely on subsection 1, which empowers the president to deploy the Guard whenever the United States “is invaded or is in danger of invasion by a foreign nation.”
That’s relevant for two reasons. First, it informs the degree of threat to the nation that must be reached before the president may depart from the constitutional norms of state sovereignty and police power over internal security matters. A true invasion is a substantial threat.
Second, since March, the president has been claiming that the United States has been invaded (and or is being subjected to a predatory incursion) by operatives of the Venezuelan government. While the administration continues to defend this self-evidently absurd assertion in court (it has asked the full Fifth Circuit to review a divided panel’s rejection of the president’s claim), it speaks volumes that the administration is not trying to suggest that the invasion prong applies for purposes of deploying the Guard. So . . . are we under invasion or aren’t we? And if we are, is the president saying that’s happening only in places where he hasn’t tried to deploy military troops?
Who Gets to Decide?
In any event, as Rich and I have discussed repeatedly on the podcast, these legal issues in the national security realm pose two questions: (a) what is objectively true, and (b) who gets to decide. By the administration’s lights, the second question swallows the first. Relying on Martin v. Mott (1827), a precedent arising out of the War of 1812 and a 1795 precursor of Section 12406, the Trump Justice Department contends that the president’s judgment on the nature of a security threat to the United States is not reviewable.
This is an overinterpretation of Mott (as well explained in this Jack Goldsmith essay). Notwithstanding that case’s extravagant formulation (“the authority to decide whether the exigency has arisen belongs exclusively to the President, and . . . his decision is conclusive upon all other persons”), the narrow issue in the case was whether a soldier called into service could refuse to report based on his stated belief that the president was wrong that an invasion had occurred. It was logical to conclude, as the Mott Court did, that subordinates may not second-guess the commander in chief on the nature of a threat. It hardly follows, however, that courts may not assess the president’s conclusion.
Remember, the deployment authority at issue is not inherent in the president based on Article II; it was conferred by Congress, which prescribed the conditions to be met. It is fair enough to say that, given their comparative institutional competencies, the courts owe a measure of deference to the president’s security judgments. But to say the courts must not be a rubber stamp is not (as the Trump DOJ grouses) the same as saying that the judiciary should substitute its judgment for the president’s on the question of whether deployment of the Guard is a worthy policy. No, the question is whether the factual conditions prescribed by Congress have been met. That’s just statutory interpretation, which is what courts do.
And that is what the Seventh Circuit panel concluded the courts should do in the Chicago case.
Judge Perry’s Ruling in the Lower Court
The panel was complimentary of the extensive factual record developed by Judge April M. Perry, the Biden appointee to the district court in the Northern District of Illinois. Judge Perry had enjoined the administration from both federalizing and deploying the Guard. Prior to its Thursday decision, the Seventh Circuit had allowed the president to federalize the guard but kept the injunction against deployment in place.
In her October 10 ruling (here, you must scroll to A222), Perry rebuffed the administration’s contention that she lacked authority to review President Trump’s determination that the cited statutory conditions — rebellion and inability to enforce federal law with regular forces — had been met. Even granting deference to the president’s judgment, Perry found the state’s law enforcement witnesses coherent and credible, while the administration’s witnesses were inconsistent and uninformed on essential points. For example, the administration asserts both that the president is unable to enforce federal immigration law without deployment of military force and that the administration’s immigration enforcement initiative in Chicago is a smashing success, with over a thousand arrests and counting.
Rebellion
On that record, the Circuit panel had little trouble concluding that Perry’s findings were not clearly erroneous (the highly forgiving standard applicable at this stage of the case). But the panel’s grapple with the statutory terms is notable. The panel substantially agreed with Perry that a rebellion is “a violent, armed, organized, open and avowed resistance that is against the government as a whole — often with the aim of overthrowing the government — rather than in opposition to a single law or issue” (internal quotation and citations omitted). Beyond that, though, the three judges took care to
emphasize that the critical analysis of a “rebellion” centers on the nature of the resistance to governmental authority. Political opposition is not rebellion. A protest does not become a rebellion merely because the protestors advocate for myriad legal or policy changes, are well organized, call for significant changes to the structure of the U.S. government, use civil disobedience as a form of protest, or exercise their Second Amendment right to carry firearms as the law currently allows. Nor does a protest become a rebellion merely because of sporadic and isolated incidents of unlawful activity or even violence committed by rogue participants in the protest.
To be clear, the court was not saying that civil disobedience and incidents of unlawful activity and violence are legitimate or acceptable. Just that they do not rise to the profound national security threat of a rebellion. Regarding lawlessness and violent incidents, the panel stated: “Such conduct exceeds the scope of the First Amendment, of course, and law enforcement has apprehended the perpetrators accordingly.” It elaborated, though, that because rebellion must involve “deliberate, organized violence to resist governmental authority,” lesser iterations of violence, while actionable under the criminal law, do not convert a protest into a rebellion.
Do Democrats Now Regret Their J6 ‘Insurrection’ Rhetoric?
I believe that the court is right about this. I am constrained to observe, however, that Illinois Democrats, like Democrats and their media allies in general, all now ballistic over Trump’s exaggerations, could not have been more enthusiastic backers of the left’s tireless narrative that the Capitol riot — a three-hour disturbance that caused so little damage, Congress was able to reconvene a few hours later — was an insurrection carried out by domestic terrorists who had our democracy hanging by a thread. They contended (and still do, I assume) that several police were killed in the line of duty when, in reality, none were (which, of course, is why the Biden Justice Department never charged anyone with murder in that connection).
A number of us pushed back repeatedly on these falsehoods. For Democrats, however, there was no higher value than fighting Trump and his base, so no falsehood was out of bounds. Thanks to that approach, they’ve now got Trump back in power and, with his base cheering him on, he is doubling down on the Democrats’ mendacious lawfare strategems. (I expect, over time, he’ll get the Democrats’ same dismal polling results.)
Unable to Enforce Federal Law with Regular Forces
The circuit panel noted that, as to the second prong of Section 12406 on which the administration relies, there are conflicts between courts regarding the meaning of key terms. What does it mean for the president to be unable to enforce federal law with regular forces? When Trump deployed the Guard in Los Angeles, the Ninth Circuit found that if law enforcement was “significantly impeded,” that satisfied the unable standard. (See Newsom v. Trump.) Judge Perry more strictly (and to my mind, impractically) says unable means “being incapable.” The Ninth Circuit construed regular forces to mean “federal officers” (meaning, law enforcement, as opposed to military, forces). Judge Perry reads the term to mean “soldiers and officers serving in the regular armed forces” (as opposed to the State National Guard) — an interpretation that may be right but foreshadows the likelihood that Trump has easier means than Section 12406 to accomplish his aim of deploying military force.
The circuit panel concluded that it did not need to broker these disputes. Even affording the president the benefit of the Ninth’s Circuit’s less onerous construction of Section 12406, the panel found:
there is insuffcient evidence that protest activity in Illinois has significantly impeded the ability of federal offciers to execute federal immigration laws. Federal facilities, including the processing facility in Broadview, have remained open despite regular demonstrations against the administration’s immigration policies. And though federal offers have encountered sporadic disruptions, they have been quickly contained by local, state, and federal authorities. At the same time, immigration arrests and deportations have proceeded apace in Illinois over the past year, and the administration has been proclaiming the success of its current eforts to enforce immigration laws in the Chicago area.
The Seventh Circuit reached its conclusions about the statute only after rejecting (as had Judge Perry) the administration’s interpretation of Mott as giving the president sweeping, unreviewable power in this context. That is important because the administration has appealed the panel’s ruling to the Supreme Court, whose review of that precedent would be welcome given the regularity of the administration’s reliance on it.
What Happens Next?
I would not read too much into this, but the Trump Justice Department can’t be thrilled by the early tea leaves. Justice Amy Coney Barrett, the Circuit Justice for emergency applications out of the Seventh Circuit, got the administration’s request for review and has directed Illinois to reply to it by Monday. But Justice Barrett did not grant the administration’s request that the Circuit’s ruling be stayed while the Court considers its application.
We’ll see what happens next week. The Chicago case arose after the Ninth Circuit (a) had already allowed the president’s Guard deployment in Los Angeles, and (b) had under review the decision of Judge Karin Immergut (a Trump appointee) enjoining the president from deploying the Guard in Portland, Ore. (See the Politico report that the Ninth Circuit panel seemed sympathetic to the administration’s position but hasn’t yet ruled.)
For what it’s worth, I expect Justice Barrett will refer the administration’s application on the Chicago controversy to the full Supreme Court, and that the justices will agree to review the Seventh Circuit’s decision but leave it in place pending the Court’s decision. I also expect that, while the Court will affirm that the president’s national security decisions are entitled to some measure of deference, if the president relies on a statute, courts not only may but must perform their judicial function of construing the statute to determine if its conditions have been met.
Meantime, let’s not forget the wild cards. President Trump does not have to rely on Section 12406 to deploy military force domestically. He can try to do it based on his inherent constitutional authority to protect federal personnel, facilities, and functions (e.g., enforcement of the immigration laws).
He can also try to do it by invoking the Insurrection Act to deploy the regular armed forces, as opposed to the Guard (see Sections 252 and 253 of Title 10, U.S. Code). He periodically signals that the latter move is coming. As Jack Goldsmith has forcefully argued, the Insurrection Act is a more capacious and probably less reviewable source of executive authority — which is why there have been calls over the years to rein it in. Those calls met with no meaningful legislative action. So here we are.