187. "Regular Forces" and the Insurrection Act

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The biggest news out of the Court last week was the Wednesday afternoon order in the Illinois National Guard case—in which the justices asked the parties to provide supplemental briefs on a substantive argument against the Trump administration that, as I’d noted previously, my friend and Georgetown Law colleague Marty Lederman had flagged in a friend-of-the-Court brief. For reasons I’ll elaborate upon below, my own view is that this briefing order is a pretty good sign for those who think the Court should deny the Trump administration’s application (and thereby leave on hold his attempted deployment of federalized National Guard troops into and around Chicago).

The trickier part is whether, as some have worried, adopting that argument would simply provoke the Trump administration into invoking the Insurrection Act—the scarier and even-older statute authorizing domestic use of the regular military, even for ordinary federal law enforcement. But as I suggest in the post that follows, two different things are necessarily true: First, my own view—and, more importantly, the longstanding view of the Department of Justice—is that the factual predicates for invoking the Insurrection Act are meaningfully more restrictive than the statute on which President Trump has relied to date (and than the facts on the ground would remotely support).

And second, insofar as that’s wrong, it suggests that nothing is currently stopping the Trump administration from invoking the Insurrection Act. If so, there are good reasons to shift the focus of the legal debate to the scope of that statute and its precedents (and historical interpretations), rather than an obscure law Congress passed in 1908 that was never intended to—and shouldn’t—be used the way President Trump has to date, i.e., as an ...