199. Four Takeaways From the National Guard Ruling
Deep Dives
Explore related topics with these Wikipedia articles, rewritten for enjoyable reading:
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Posse Comitatus Act
12 min read
Central to the Court's ruling - this 1878 law prohibiting military enforcement of domestic laws is the key legal framework the majority used to interpret the National Guard statute. Understanding its history and exceptions is essential to grasping why the deployment was blocked.
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Insurrection Act of 1807
14 min read
The article ends by raising whether Trump might invoke this Act to use regular military forces. This rarely-used statute has been invoked during major civil unrest (LA riots, Katrina) and understanding its scope illuminates the constitutional tensions at stake.
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I wanted to use today’s “Long Read” to take a deep dive into the Court’s ruling last Tuesday in Trump v. Illinois, in which a majority of the justices left in place lower-court rulings barring President Trump from deploying federalized National Guard troops into and around Chicago in response to anti-ICE protests. The decision is, without question, the most significant setback for the Trump administration at the Supreme Court at least since the justices repudiated its effort to use the Alien Enemies Act of 1798 for summary, mass removals back in April. It also features an enigmatic concurrence by Justice Kavanaugh and dissents from Justices Alito and Gorsuch that have been the basis for significant criticism of the Court from the right—critiques that, in my view, are remarkably overblown and/or hypocritical. To make a long story short(er), although I still think the majority could (and should) have explained its ruling in a bit more detail, the Court got a very big one right—in ways that will almost certainly make it more difficult, as it should be, for the Trump administration to attempt to militarize domestic law enforcement based on dubious factual predicates.
More on all of this below. But first, the (little) other news.
On the Docket
Not surprisingly, last week was a very quiet one at the Court. Tuesday’s ruling in the Illinois National Guard case was the only action by the full Court; and the only other action of interest was Monday’s grant of an administrative stay by Justice Alito in a long-running labor dispute between the company that owns
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