Don’t give Trump ideas
By now you’ve heard. Ed Kilgore tells it:
More often than not in 2025, when the U.S. Supreme Court issues one of its highly procedural “shadow docket” emergency orders involving Donald Trump’s executive prerogatives, the conservative majority has delivered for the president. But not today. In a final order before the Court shuts down for Christmas, six justices (the order itself was unsigned, but Justice Brett Kavanaugh wrote a concurrence and Justices Samuel Alito, Clarence Thomas and Neil Gorsuch signed dissents) agreed to uphold a lower-court ban on Trump’s deployment of Illinois and Texas National Guard troops in Chicago for purposes of aiding federal immigration agents and cracking down on protesters.
As the Washington Post explained it:
The Trump administration justified putting the National Guard under federal control by invoking a law that allows the president to federalize the Guard if he is unable to execute federal law using “regular forces.” The administration argued that language referred to civilian law enforcement agencies, such as Immigration and Customs Enforcement.
SCOTUS, for once, was not buying it. Nor the DOJ’s argument that the courts had no business reviewing a commander-in-chief’s orders for the military.
The court’s majority rejected the administration’s argument. The law’s reference to “regular forces” probably refers to the U.S. military, the court said, not to civilian law enforcement. Because of that, the justices said, the president’s authority to federalize the National Guard “likely applies only where the military could legally execute the laws.”
Under a federal law known as the Posse Comitatus Act, the circumstances in which the military can be employed for law enforcement purposes are very strictly limited, the court noted, suggesting that the same would be true for Guard troops.
Now what? Justice Brett Kavanaugh saw fit to suggest in a concurring opinion that Trump might deploy troops to U.S. cities using the Insurrection Act.
“The Court’s legal interpretation,” Kavanaugh wrote, “could lead to potentially significant implications for future crises that we cannot now foresee.” Denying use of the Guard in an emergency, Kavanaugh writes in a footnote, “could cause the President to use the U. S. military more than the National Guard to protect federal personnel and property in the United States.”
Do. Not. Encourage Him.
CNN observes:
The current version of the Insurrection Act was last invoked by President George H.W. Bush during the 1992 Los Angeles riots that followed the acquittal of four White police officers in the beating of Rodney King. Perhaps the best-known use of the Insurrection Act was in 1957, when President Dwight Eisenhower federalized the Arkansas National Guard and sent the 101st Airborne Division to Little Rock to integrate its schools.
That order followed the Supreme Court’s historic decision three years earlier in Brown v. Board of Education that declared segregated schools unconstitutional.
William Banks, a Syracuse University law professor and expert on the Insurrection Act, told CNN that such a move would almost certainly be more politically dicey. “Instead of part-time National Guard personnel, the president could send in the 82nd Airborne in heavy armor and gear and gin up some heavy martial images for our screens,” Banks said.
One saving grace is that we saw how poorly regular troops responded to Trump’s using them as props for his birthday parade. How might they respond to being deployed against Americans protesting ICE raids ro an invasion of Venezuela?
Happy Hollandaise everyone.