In one of its most consequential rulings of the year, just before the holidays last week, the Supreme Court held that President Trump acted inappropriately by federalizing the National Guard in Illinois and activating troops across the state. Although the case focused on the administration's deployments in Chicago, the court's ruling suggests that Trump's actions in Los Angeles and Portland were also illegal.
Trump has said that his troop deployments to these metropolitan areas were just the beginning and that his administration planned to use military force in more cities across the country. The specter of US troops deployed against its citizens is inconsistent with a long history of not mobilizing the military for domestic law enforcement purposes. Images of troops patrolling city streets are seen more frequently under authoritarian regimes, not in the United States. The Supreme Court ruling will immediately put an end to this.
To reach this conclusion, the Supreme Court interpreted two federal statutes: the first, 10 USC §12406(3), empowers the president to federalize members of a state's National Guard only if it “cannot, with regular forces, execute the laws of the United States.” The Trump administration claimed it needed to federalize the Illinois National Guard, and similarly troops in California and Oregon, because local police failed to adequately protect U.S. Immigration and Customs Enforcement agents, especially during protests and other demonstrations.
Whether this level of protection was actually necessary is still widely debated, and in three separate rulings this year, federal courts found that no such need existed in Chicago, Los Angeles and Portland. However, the Supreme Court sidestepped that issue by explaining that the legal provision means that a president can federalize a state's guard only if it can be shown that the U.S. military cannot provide adequate protection to the activities of the federal government.
In a 6-3 ruling, the court concluded that “the term 'regular forces' in section 12406(3) likely refers to the regular forces of the United States military. This interpretation means that to call the Guard to active federal service under section 12406(3), the President must be 'incapable' along with the regular military of 'executing the laws of the United States.'”
This, in itself, is obviously a major limit on the president's ability to federalize a state's National Guard.
But the Supreme Court went even further, adding that federalizing a state's guard would first require that the state be in a situation where the U.S. military could legally deploy against its citizens, but that its use would be insufficient. In this case, a second federal statute is essential. The Posse Comitatus Act, 18 USC §1385, adopted in 1868, prohibits the deployment of the U.S. military for use in domestic law enforcement except in very limited circumstances, such as when there is an insurrection in a state. Adopted shortly after the end of Reconstruction, the law makes it a federal crime to deploy the military within the borders of the United States, except as expressly authorized by the Constitution or a federal statute.
In layman's terms, the Supreme Court ruled that a president can federalize a state's National Guard only in the rare circumstances where the Posse Comitatus Act allows the military to be used to enforce national law, and only if the U.S. military is deemed inadequate to quell unrest. Ultimately, the Court stated that “before the President can federalize the Guard under Article 12406(3), he must likely have statutory or constitutional authority to execute the laws with the regular military and must be 'incapable' with those forces to perform that function.”
It is difficult to imagine, except in the most dire circumstances, how these requirements could be met. This is exactly how it should be. The US military is not trained to police its citizens and is not instructed on the use of force to protect civil liberties. And removing policing from the control of state and local governments would dramatically expand the president's power. The Supreme Court's approach is precisely what Congress had in mind in 1878 when it prohibited the use of the military to enforce the law in the country.
I and many others have criticized the Supreme Court for appearing to act as a seal of approval for the Trump administration's actions. But here the court fulfilled its essential role of enforcing the law and imposing checks on presidential power. And he did so in a way that will be enormously important in the months and years to come to prevent this president from using the military to accomplish his political agenda within the United States.
Erwin Chemerinsky is the dean of the UC Berkeley School of Law.
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Ideas expressed in the piece.
The author argues that the Supreme Court's decision represents a critical check on presidential power that will prevent the militarization of American cities. Under the author's interpretation of the ruling, the Court correctly determined that “regular forces” in the relevant statute refers to the U.S. military and not law enforcement, setting an exceptionally high bar for the federalization of state National Guard units. The author emphasizes that this interpretation aligns with the Posse Comitatus Act's long-standing ban on domestic military deployment for law enforcement purposes, a restriction adopted in 1868 to prevent exactly the type of troop deployments Trump attempted in Chicago, Los Angeles, and Portland. The author emphasizes that the US military is neither trained nor authorized to police citizens while protecting civil liberties, and that allowing presidential federalization of the National Guard for routine law enforcement would constitute a dangerous expansion of executive authority. The ruling, according to the author, fulfills the essential constitutional function of enforcing checks on presidential power and protecting democratic governance for the future.
Different points of view on the topic.
The Trump administration and some justices argued that the Supreme Court's decision improperly limits the executive authority and security of federal officials. Justice Samuel Alito's dissent emphasized that “the protection of federal agents against potentially lethal attacks must not be thwarted,” holding that federal law enforcement personnel faced genuine dangers during protests against immigration enforcement operations in Illinois.[1]. The administration's Solicitor General argued that courts should substantially defer to the president's determinations regarding the need for deployment, holding that the president should be “the sole judge of whether” legal preconditions for deployment exist.[1]. The Trump administration further argued that “regular forces” in the relevant statute refers to civilian law enforcement agents rather than the military, pointing to a “strong tradition in this country of favoring the use of the militia rather than the standing army to quell internal unrest.”[1]. Justices Alito and Gorsuch also criticized the majority for addressing the “regular forces” interpretation even though lower courts had not considered that question directly, suggesting that the Court went beyond what the preliminary litigation required.[1]. Additionally, at least one legal perspective suggested that restricting the deployment of the National Guard could, paradoxically, result in greater reliance on the active-duty military for domestic purposes.[2].
