The Supreme Court, apparently reacting to arguments made to it by a law professor, on Wednesday showed the first signs that it may hesitate before allowing President Trump to use either the National Guard or regular military troops to help enforce federal immigration law across the nation.
In a one-page order issued this evening, the Court asked lawyers in a pending case on this controversy to file new legal briefs on the meaning of a two-word phrase in the 1903 law that the a President and his legal aides are relying on to justify sending Guards to several cities where immigration officers have met resistance in their aggressive raids to round up undocumented immigrants.
The new briefs are due on Monday, November 10, so that means that the Court is not likely to act in a final way on the dispute until at least then. So far, the President has sent Guard troops or regular military forces to Los Angeles, Washington, D.C., and Chicago, and claims unchecked authority to do so.
The lower federal courts so far have reached mixed results on the question, so the Court probably will have to decide it in a final way. In a letter to the Court tonight, the Justice Department told of those conflicting results.
The law on which Trump is relying was passed 122 years ago as part of an effort by Congress to set up a militia force that could be effective if called into service by a President to put down a rebellion in this country. The militia – now existing in the form of the National Guard – were state-based military units. The 1903 law authorized the President to summon troops to duty when there is “a rebellion or threat of rebellion against the government” or “the President is unable with regular forces to execute the laws of the United States.”
President Trump and his Justice Department claim that the “regular forces” phrase in the law means the civilian law enforcement forces such as immigration law enforcers or the federal officers who protect government buildings. So far, the courts that have reacted to these mobilizations have not focused on what “regular forces” in the law means.
However, a Georgetown law professor, Martin S. Lederman, who has years of service in government posts, filed a brief in the Court last week spelling out in detail what he says is the history behind the 1903 law and behind that phrase and the background on other laws governing domestic use of the military.
The phrase clearly meant, Lederman contended, the regular military like the U.S. Army, Navy, Marines or other uniformed services. So, the professor’s brief said, Trump has no authority to call up the National Guard when the situation is too much to handle for civilian forces because that authority only exists when the regular military also could not restore order if they were sent in.
The professor, though, said this does not mean that Trump has the authority to use the regular military services to restore order, because there is another federal law – the Posse Comitatus Act, passed in 1878 – that forbids the use of those forces to enforce civilian laws in this country.
It is not illegal to use the regular military in that role, the professor noted, but only if Congress or the Constitution itself has explicitly authorized it. The Constitution does not do so, the brief said.
Is there a law that might authorize that? The professor mentioned the Insurrection Act. That is not just one law, but a series enacted by Congress between 1792 and 1871. Those laws do permit the President to use the regular military in domestic law enforcement, despite the Posse Comitatus Act, but Professor Lederman said there is a long-standing tradition that this broad use of presidential authority should only occur if there is “a complete breakdown” of state and local government agencies’ power to restore order.
“No President has ever invoked” that authority contrary to that tradition, the professor noted.
President Trump from time to time has talked publicly about using the Insurrection Act power to ensure enforcement of his mass deportation policy. Whether he would follow the tradition outlined by the professor is far from predictable.
At this point, the Court has not yet agreed formally to sort out the legal use of the Guard or military forces in the wake of the deportation campaign. It is only considering for now whether to temporarily block a federal judge’s order forbidding the use of the Guard in the city of Chicago and that area of Illinois.
The Justice Department first asked the Court to step into this controversy 12 days ago. It asked the Justices to immediately block the lower court action while it considers a further postponement of that order. The Court has taken no action on the request for immediate action; its first move was tonight’s request for further legal briefs on the phrase in the 1903 law.
