This was an early Christmas present.
The Supreme Court upheld a block on the National Guard’s deployment to Chicago Tuesday, dealing the Trump administration a significant blow and embracing an interpretation of the laws that govern the Guard’s activation that differs considerably from the administration’s.
The majority was unsigned, though Justice Brett Kavanaugh wrote a separate concurrence. Justice Samuel Alito, joined by Justice Clarence Thomas, wrote one dissent, and Justice Neil Gorsuch wrote another.
The decision will reverberate throughout Trump’s attempt to deploy the Guard into Democratic cities across the country; multiple other cases have been in limbo awaiting the Court’s delayed ruling.
The majority and Kavanaugh embraced an interpretation of when the Guard can be federalized born from one amicus brief on which the justices requested further briefing. The statute reads that the Guard can be federalized when the president is “unable with the regular forces to execute the laws of the United States.” Georgetown University Law Professor Marty Lederman argued in his amicus brief that “regular forces” refers to the active duty military, not to civilian law enforcement, as many have assumed.
Practically, that interpretation would mean that Trump has to meet the standards of the Insurrection Act, send in the military, and watch them be overwhelmed before he could send in the Guard. “It’s meant as a kind of backstop to the backstop of the Insurrection Act,” as one expert put it to TPM.
“Because the statute requires an assessment of the military’s ability to execute the laws, it likely applies only where the military could legally execute the laws,” the Court majority wrote. “Such circumstances are exceptional…”
“At this preliminary stage, the Government has failed to identify a source of authority that would allow the military to execute the laws in Illinois,” it added.
Kavanaugh, while broadly agreeing with the majority’s take, points out an obvious risk of the newly embraced interpretation of the law: “One apparent ramification of the Court’s opinion is that it 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.”
See here and here for some background. As a reminder, this deployment was not popular with Texas voters. This could have been cleaner, but any check on Trump by this SCOTUS is welcome news. I’m sure they will try again in some other place and some other fashion, but maybe now they’ll have to work a little harder at it. The Chron, the Associated Press, and Slate have more.
Of course Alito and Thomas are on the bad side. This should have been 9-0, but we’ll take what we can get. I expect those 2 will get the tariff case wrong too.