The justices delve into what it means for the president to say he needs the Guard because ‘regular forces’ are inadequate.
The Supreme Court has ordered the Trump administration and the State of Illinois to provide additional briefing on a statutory term that is key to the president’s effort to deploy the National Guard in Chicago. The order was issued Wednesday.
Trump has claimed that the deployment is necessary, pursuant to Section 12406 of the laws governing federal use of the Guard (Title 10, U.S. Code), because he “is unable with regular forces to execute the laws of the United States” (emphasis added). The question — as the administration seeks to step up enforcement of immigration law, including rounding up illegal aliens in anticipation of deporting them — is what does the term regular forces mean?
Two weeks ago, a unanimous three-judge panel of the Seventh Circuit (which included appointees of Bush-41 and Trump himself) upheld the temporary restraining order (TRO) against the deployment issued by Judge April M. Perry, a Biden appointee. The administration appealed.
As I explained at the time, the likelihood was that Justice Amy Coney Barrett (the circuit justice for emergency appeals arising in the Seventh Circuit) would refer the case to the full Court, and in the meantime, neither she nor the Court would disturb the TRO while the case was under their consideration. That is what happened.
I also outlined some of the statutory terms on whose meaning the lower courts had divided, which the Supreme Court might thus intervene to clarify:
The circuit panel noted that . . . 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.
Sure enough, the Supreme Court has homed in on regular forces. As intimated in the above excerpt, I suspect Judge Perry has the better of the argument on original meaning. In her opinion explaining the TRO (see here, scroll to pp. A241-43 and A255-64), she traced historical sources indicating that, when the predecessor statute of Section 12406 was enacted, the phrase regular forces
was understood . . . to mean the soldiers and officers regularly enlisted with the army and Navy, as opposed to the militiamen who did not make it their livelihoods to serve their country but instead took up arms only when called forth in times of national emergency.
This is markedly different from the Ninth Circuit’s construction of the term to mean federal law enforcement agencies.
The Supreme Court now wants the parties to address the meaning of the term as the justices weigh whether to broker these conflicting lower court interpretations. In affirming the TRO, the Seventh Circuit panel did not try to resolve the dispute; it concluded that even applying the Ninth Circuit’s more forgiving standard, the administration would lose, and thus that it was unnecessary to go further.
I also detailed in the above-linked post that other terms in Section 12406 are at issue. These include whether there is a rebellion or danger of a rebellion against government authority. The Seventh Circuit and Judge Perry were emphatic that no rebellion exists; the Ninth Circuit punted on the question, deciding the case could be resolved on the unable to enforce with regular forces prong of the statute. It would not surprise me if the Supreme Court weighed in on that issue.
I also believe the justices may find it curious that President Trump has not claimed that the invasion prong of the statute would justify deploying the guard; last term, the Court was repeatedly drawn into the controversy over the president’s deportation of alleged Venezuelan gang members based on his judgment that they were conducting an invasion of the United States (thus triggering the Alien Enemies Act). (See here and here.)
In any event, we’ll have to see what the Court does, but it can’t make the Justice Department happy that the justices are asking about the meaning of statutory terms. The administration’s argument is that the judiciary should defer to the president’s judgment on these matters.
The Court has directed the administration and Illinois to file their briefs in response to the Court’s question about “regular forces” by November 10, with any reply briefs by the following week. I’d be surprised if we had a decision by Thanksgiving.
Since the TRO remains in effect in the interim, I have to think the justices are not too impressed by the president’s claims that he cannot enforce the immigration laws without deploying the Guard — especially when ICE facilities remain open and functioning and the administration is otherwise saying its enforcement operation in Chicago has been a great success.