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The Supreme Court did something quite strange this week—and for the first time in a long time, it was not obviously for the benefit of President Donald Trump. Since Oct. 17, the justices have been considering whether to grant a stay of a lower-court order blocking the National Guard’s deployment in Chicago. When the court finally took action on Wednesday, however, it did not issue a decision either way; instead, it requested further briefing on a question that the parties largely ignored but that could cut decisively against the government. SCOTUS also kept the injunction in place while it awaits those filings, which are due Nov. 17.
In some respects, Wednesday’s order is a punt, delaying a shadow docket ruling on an explosive dispute. But it also signals that a majority is, at a minimum, not yet convinced that Trump should prevail. By allowing so much time for additional briefing, the court has hinted that it doesn’t see the Chicago injunction as the dire emergency the administration claims it is. The justices have also revealed that they’re seriously considering an argument that has received relatively little attention—but would, if correct, render the Guard’s deployment blatantly unlawful. It’s a high-stakes theory that could trigger serious escalation by Trump. Yet it might also be what clinches five votes against him.
The central clash in Trump v. Illinois is whether the president has legal authority to federalize and mobilize the National Guard in the Windy City. It is a momentous question: The Constitution gives Congress the power to decide when the commander in chief can take over a state’s Guard, and federal law limits him to a narrow range of extraordinary circumstances. Trump has seized on one such statute, known as Section 12406. The law permits him to send in the Guard during an “invasion” or “rebellion,” or when he “is unable with the regular forces to execute the laws of the United States.” The Justice Department rather feebly claims that the intermittent protests in Chicago constitute a rebellion. But perhaps because that’s so patently absurd, its main argument is that Trump “is unable with the regular forces” to enforce the law on the ground, justifying assistance from the Guard.
Throughout the litigation over deployments in Chicago, Portland, and Los Angeles, courts and lawyers alike have focused primarily on whether the president is genuinely “unable” to keep the peace without the Guard’s help; the meaning of the phrase regular forces has taken a back seat. The DOJ argues that it encompasses civilian law enforcement, including Immigration and Customs Enforcement and Customs and Border Protection, and the U.S. Court of Appeals for the 9th Circuit has accepted that theory. U.S. District Judge April Perry disagreed in her decision against the Guard in Chicago, interpreting regular forces to mean the military. The U.S. Court of Appeals for the 7th Circuit, however, declined to weigh in on this “thorny and complex” issue; it focused solely on the “insufficient evidence that protest activity in Illinois has significantly impeded” law enforcement.
The clearest account of what regular forces actually means has come not from any judge or plaintiff but from Georgetown Law professor Marty Lederman. In an amicus brief filed with SCOTUS, Lederman presents a meticulous account of the term’s definition in the context of this statute. The historical record shows that American lawmakers have understood regular forces to mean “the standing army” since 1776, when the Continental Congress set forth the Articles of War. That reading continued into the 1800s, when both Congress and the Supreme Court referred to the standing army as “regular forces.” Starting in the early 1900s, Congress enacted predecessors to Section 12406 that used the term in this way; members of the armed forces, including the Army’s judge advocate general, confirmed this interpretation. At no point during this period did lawmakers or high-ranking military officials use regular forces to refer to civilian law enforcement. The modern statute, Lederman demonstrates, carried through the long-standing definition: The nation’s “regular forces” are “military personnel serving in the United States Armed Services.”
It is rare for a law professor’s amicus brief to make a big impact on the Supreme Court. But Lederman’s evidently did, because the court ordered the parties to address “whether the term ‘regular forces’ refers to the regular forces of the United States military” and, if so, “how that interpretation affects” the Chicago case. Off the bat, this request indicates that there are not yet five votes to lift the injunction and send the Guard into the city, as Trump wants; if there were, the court presumably would have just done it. Similarly, it suggests that there are not five votes for the government’s radical assertion that courts have no authority to stop the Guard’s mobilization at all. At least a few Republican-appointed justices seem to think that courts (including theirs) can prohibit illegal deployments. That’s a positive sign for the plaintiffs—and for other cities facing imminent deployment, like Portland—that they may yet prevail at SCOTUS.
As persuasive as Lederman’s theory may be, it also has some alarming implications. If it’s true that Trump can send in the Guard only after he has failed to control the situation with the military, the question arises: When can he send in the military? Lederman notes that the Insurrection Act allows the president to deploy the military within the U.S. to repel insurrections and invasions or “execute the laws of the union.” The DOJ has long understood this last provision to apply solely when state authorities are defying the national government or refusing to stop the infringement of federal rights. (That’s why Presidents Dwight Eisenhower and John F. Kennedy invoked the act to carry out desegregation when racist governors refused to do so.) “It is far from clear,” Lederman writes, that any such obstruction of federal law has occurred in Chicago that would warrant the act’s invocation.
Once the Insurrection Act has been lawfully invoked, though, it sweeps much further than Section 12406. That’s because it creates an exception to the Posse Comitatus Act, which generally bars troops from enforcing domestic laws. That’s not true of Section 12406: Even if Trump can use that statute to send in the Guard, troops may only defend federal agents, operations, and buildings; they cannot function as a roving police force that carries out the typical work of civilian law enforcement. The Posse Comitatus Act forbids it. If the president uses the Insurrection Act to send in the military, by contrast, he can direct troops to execute domestic laws that have no connection to ongoing federal operations. Service members could be instructed to search, arrest, and imprison civilians they deem suspicious and impose their commander in chief’s draconian vision of law and order. That situation looks a lot like martial law.
For Chicago, then, Lederman’s theory is high risk, high reward. It gives the Supreme Court another way to shoot down the administration’s current deployments of the Guard into American cities. Yet it would also give Trump an incentive to invoke the Insurrection Act and claim even more power to place these cities under military control. Courts could attempt to block those efforts, of course—but only if they determined that they can review the president’s decision in the first place. (That’s an open question.) It is doubtless encouraging that SCOTUS has not yet rubber-stamped Trump’s use of the Guard, given its persistent bias toward this president. If the justices do rule against him under this theory, though, their decision could spur a crisis that makes the current standoff look tame by comparison.
