One Amicus Brief May Have Given Supreme Court an Out in Chicago National Guard Case

The Supreme Court is, apparently, reading its amicus briefs — and one of them may provide an offramp from immediately having to decide whether President Trump has the power to deploy the National Guard into Illinois. 

On Wednesday, the Court asked for further briefing on whether the term “regular forces,” in the context of the law that governs the federalization of the National Guard, means the regular military forces or the regular civilian forces. This definition is critical; Trump is attempting to deploy the Guard using a statute that suggests he can do so when “the President is unable with the regular forces to execute the laws of the United States.” 

So far, Trump has attempted to argue that “regular forces” refers to local law enforcement and federal officers, who he claims are overwhelmed and endangered by the anti-ICE protests a few miles outside the city’s downtown. 

Not so, says Georgetown Law’s Marty Lederman. In an amicus brief that seems to have caught the Justices’ attention, Lederman gives a thorough accounting of the legislative history of the term “regular forces,” offering pages of evidence that it referred to the military. Under his theory, the National Guard was meant to be called in as a last resort if the active duty military couldn’t quell whatever domestic crisis they were deployed to handle. 

That “dramatically impacts” where Section 12406, the National Guard federalization statute, fits in the statutory scheme, Joseph Nunn, counsel in the Brennan Center’s Liberty and National Security Program focusing on domestic military activity, told TPM. “It’s meant as a kind of backstop to the backstop of the Insurrection Act.” 

That would mean that Trump would have to meet the standards of the Insurrection Act to deploy the active duty military and then see them be overwhelmed before he could activate the Guard — a far cry from his current attempted deployments, as he tries to send the troops into blue cities across the country in response to fairly mild protests.

The risk here is obvious: If the Court adopts this position, Trump might just invoke the Insurrection Act instead, bringing active duty soldiers into American streets. 

“Some critics have suggested this could dangerously encourage Trump to first deploy the regular military before sending in the National Guard — and, of course he has already deployed the regular military on U.S. streets when he sent Marines to Los Angeles,” said Chris Edelson, an expert in presidential national security power at American University.

But Lederman wrote that Trump can’t simply invoke the Insurrection Act on a whim either.

“In offering this argument about the proper meaning of ‘the regular forces,’ amicus does not mean to suggest that the President has legal authority to direct regular military forces to execute federal laws in Illinois,” he wrote, pointing to the longstanding Office of Legal Counsel memo establishing that the President can only invoke the Insurrection Act at the plea of a governor asking for help, or to enforce a federal court order. 

The biggest wrinkle in the theory is that it rests on an unusual order of affairs: Active duty soldiers being backed up by the Guard, rather than the other way around. 

“It turns normal procedure on its head — typically, in American history, we expect the president to call in the National Guard first and only if they’re not able to deal with the disorder, turn to the active duty armed forces,” Nunn said. “But given the strength of the legislative historical argument that Marty has uncovered, that probably should trump that it doesn’t quite fit into how things have historically worked.”

The justices gave involved parties until mid-November to file their supplemental briefs, a slower pace than the Trump administration is accustomed to when asking the Court to rule in an emergency posture on its behalf.