Supreme Court rules against Trump on deploying the National Guard

Supreme Court rules against Trump on deploying the National Guard

The Supreme Court has ruled by a 6-3 vote that the president cannot deploy national guard troops in Chicago to protect immigration officers and their facilities from protestors. The ruling rests on the interpretation of the law 10 US Code §12406. That law says the president can call the national guard into federal service if 

(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;

(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or

(3) the President is unable with the regular forces to execute the laws of the United States.

The litigation in the case has revolved around the third point and the words “unable” and “regular forces.” What is mean by “regular forces.” Does this mean those who are enlisted in the armed forces rather than the weekend warriors in the national guard? Trump’s lawyers argued that regular forces did apply to the national guard while the opposing attorneys argued otherwise. The six supreme court justices said “We conclude that the term ‘regular forces’ in §12406(3) likely refers to the regular forces of the United States military. This

interpretation means that to call the Guard into active federal service under §12406(3), the President must be ‘unable’ with the regular military ‘to execute the laws of the United States.’” Of course the use of the armed forces domestically is restricted. The Posse Comitatus Act prohibits the use of the regular armed forces “to execute the laws” except in situations where it is “expressly authorized” by the Constitution or an act of Congress. Alito, Thomas ad Gorsuch dissented with Alito and Gorsuch penning their objections. Alito said that the president’s “inherent constitutional authority to protect federal officers and property” should be “sufficient to justify the use of National Guard members in the relevant area for precisely that purpose.”

In the lower courts there were arguments as to how much violence and disruption in the protests would be enough to warrant military intervention. That appeared to be the issue with Alito. However, one wonders if an Antifa like protest that occurred in Seattle was transpiring where facilities were torched and ICE officers injured would there be sufficient cause to invoke Section §12406(3). Also, since I don’t know the law, I wonder if the FBI or the Marshal’s Service or other federal law enforcement officers could be deployed to protect ICE and its facilities?

Finally, in those states where the governor concurred with deployment like Tennessee and Louisiana, the governors call out the guard rather than the president. I presume that if ICE facilities were endangered and the governor called out the guard, then that would be legal. But what of states like Washington, Illinois and California where the governors are hostile to ICE and hate Trump? How is ICE sufficiently protected in those states? Perhaps the attorneys who read this blog can provide an answer. Finally, I presume that if the president went to the Congress for the authority to use the national guard and it were granted (fat chance it would get 60 votes in the senate), then the guard could be legally deployed without the consent of the governors.