Dem
47
GOP
53
Yesterday, the Supreme Court denied Donald Trump's emergency application to put a hold on a lower court ruling stopping Trump's deployment of the National Guard to Illinois. The application has been on the shadow docket since early November and since then, U.S. District Judge Karin Immergut in Oregon has issued a permanent injunction prohibiting Trump from deploying the National Guard in Portland.
The ruling is significant for a couple of reasons. First, it was 6-3 against Trump, and is one of the few times the Justices have not given him what he wanted on the shadow docket. In doing so, the Court went back to its normal process for evaluating these emergency applications. When Trump is not a party, these applications are rarely granted.
Second, they expanded the issues in play to include a question that was not raised by the parties but came up in a friend of the court brief. The law that allows a president to federalize National Guard troops specifies that it can only be used if he is "unable with the regular forces to execute the laws of the United States." The question the Justices wanted answered was "What is meant by 'regular forces'?" Is that the U.S. military or does that term refer to civilian law enforcement like the police? In its 3-page order, the Court concluded that "regular forces" means the regular military. Given that definition, the next step would be an assessment of whether the regular military would have been unable to execute federal law—in this case, federal immigration law. But that can only be in cases where the use of the military would be lawful. The Court noted that "such circumstances are exceptional," because of the Posse Comitatus Act. Thus, the Court concluded that the president must first "identify the source of authority that would allow the military to execute the laws in Illinois." Because Trump has "not invoked a statute that provides an exception to the Posse Comitatus Act," he is not entitled to relief here.
So, in essence, the Court has added an additional hurdle to the deployment of National Guard troops that even the plaintiffs didn't raise. This suggests to us that, while we appreciate that reading tea leaves can be a fool's exercise, even this Court draws a firm line at the military being used on American soil, except in the most unusual of circumstances. It will be interesting to see if this changes Trump's strategy with respect to the National Guard going forward. Notably, the Court did not suggest that a governor's acquiescence to the federalization of the Guard would constitute sufficient authority. This has implications for the lawfulness of the deployment of National Guard troops to Louisiana, which were sent there with that state governor's blessing, and began arriving in New Orleans just this week. (L)