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Apparently the Supreme Court is reading its amicus briefs — and one of them could provide a solution to avoid having to immediately decide whether President Trump has the authority to deploy the National Guard to Illinois.
The biggest problem with this theory is that it relies on an unusual order of things: active-duty soldiers are supported by the Guard, not the other way around.
“This upends the normal procedure — typically, in American history, we expect the president to call in the National Guard first and only if they are unable to handle the disorder, turn to the active duty armed forces,” Nunn said. “But given the strength of the legislative historical argument that Marty discovered, that should probably take precedence over the fact that it doesn’t quite fit with how things have worked historically.”
The justices gave affected parties until mid-November to file their supplemental briefs, a slower pace than the Trump administration is accustomed to when asking the Court to rule in an emergency position on its behalf.
“In making this argument about the literal meaning of ‘regular forces,’ the amicus does not mean that the President has legal authority to order regular military forces to execute federal laws in Illinois,” he wrote, referencing the Office of Legal Counsel’s long-standing memo establishing that the President can only invoke the Insurrection Act at the request of a governor requesting assistance, or to carry out an order of a federal court.
The biggest problem with this theory is that it relies on an unusual order of things: active-duty soldiers are supported by the Guard, not the other way around.
“This upends the normal procedure — typically, in American history, we expect the president to call in the National Guard first and only if they are unable to handle the disorder, turn to the active duty armed forces,” Nunn said. “But given the strength of the legislative historical argument that Marty discovered, that should probably take precedence over the fact that it doesn’t quite fit with how things have worked historically.”
The justices gave affected parties until mid-November to file their supplemental briefs, a slower pace than the Trump administration is accustomed to when asking the Court to rule in an emergency position on its behalf.
But Lederman wrote that Trump also can’t invoke the insurrection law on a whim.
“In making this argument about the literal meaning of ‘regular forces,’ the amicus does not mean that the President has legal authority to order regular military forces to execute federal laws in Illinois,” he wrote, referencing the Office of Legal Counsel’s long-standing memo establishing that the President can only invoke the Insurrection Act at the request of a governor requesting assistance, or to carry out an order of a federal court.
The biggest problem with this theory is that it relies on an unusual order of things: active-duty soldiers are supported by the Guard, not the other way around.
“This upends the normal procedure — typically, in American history, we expect the president to call in the National Guard first and only if they are unable to handle the disorder, turn to the active duty armed forces,” Nunn said. “But given the strength of the legislative historical argument that Marty discovered, that should probably take precedence over the fact that it doesn’t quite fit with how things have worked historically.”
The justices gave affected parties until mid-November to file their supplemental briefs, a slower pace than the Trump administration is accustomed to when asking the Court to rule in an emergency position on its behalf.
“Some critics have suggested that this could dangerously encourage Trump to deploy the regular military first before sending in the National Guard — and, of course, he already deployed the regular military to the streets of the United States when he sent Marines to Los Angeles,” said Chris Edelson, an expert on presidential national security power at American University.
But Lederman wrote that Trump also can’t invoke the insurrection law on a whim.
“In making this argument about the literal meaning of ‘regular forces,’ the amicus does not mean that the President has legal authority to order regular military forces to execute federal laws in Illinois,” he wrote, referencing the Office of Legal Counsel’s long-standing memo establishing that the President can only invoke the Insurrection Act at the request of a governor requesting assistance, or to carry out an order of a federal court.
The biggest problem with this theory is that it relies on an unusual order of things: active-duty soldiers are supported by the Guard, not the other way around.
“This upends the normal procedure — typically, in American history, we expect the president to call in the National Guard first and only if they are unable to handle the disorder, turn to the active duty armed forces,” Nunn said. “But given the strength of the legislative historical argument that Marty discovered, that should probably take precedence over the fact that it doesn’t quite fit with how things have worked historically.”
The justices gave affected parties until mid-November to file their supplemental briefs, a slower pace than the Trump administration is accustomed to when asking the Court to rule in an emergency position on its behalf.
The risk here is obvious: If the Court takes this position, Trump could simply invoke the Insurrection Act, effectively bringing active duty soldiers onto American streets.
“Some critics have suggested that this could dangerously encourage Trump to deploy the regular military first before sending in the National Guard — and, of course, he already deployed the regular military to the streets of the United States when he sent Marines to Los Angeles,” said Chris Edelson, an expert on presidential national security power at American University.
But Lederman wrote that Trump also can’t invoke the insurrection law on a whim.
“In making this argument about the literal meaning of ‘regular forces,’ the amicus does not mean that the President has legal authority to order regular military forces to execute federal laws in Illinois,” he wrote, referencing the Office of Legal Counsel’s long-standing memo establishing that the President can only invoke the Insurrection Act at the request of a governor requesting assistance, or to carry out an order of a federal court.
The biggest problem with this theory is that it relies on an unusual order of things: active-duty soldiers are supported by the Guard, not the other way around.
“This upends the normal procedure — typically, in American history, we expect the president to call in the National Guard first and only if they are unable to handle the disorder, turn to the active duty armed forces,” Nunn said. “But given the strength of the legislative historical argument that Marty discovered, that should probably take precedence over the fact that it doesn’t quite fit with how things have worked historically.”
The justices gave affected parties until mid-November to file their supplemental briefs, a slower pace than the Trump administration is accustomed to when asking the Court to rule in an emergency position on its behalf.
That would mean Trump would have to meet the Insurrection Act’s standards for deploying the military on active duty, then seeing it overwhelmed before he could activate the Guard — a far cry from his current deployment attempts, as he tries to send the troops to blue cities across the country in response to fairly mild protests.
The risk here is obvious: If the Court takes this position, Trump could simply invoke the Insurrection Act, effectively bringing active duty soldiers onto American streets.
“Some critics have suggested that this could dangerously encourage Trump to deploy the regular military first before sending in the National Guard — and, of course, he already deployed the regular military to the streets of the United States when he sent Marines to Los Angeles,” said Chris Edelson, an expert on presidential national security power at American University.
But Lederman wrote that Trump also can’t invoke the insurrection law on a whim.
“In making this argument about the literal meaning of ‘regular forces,’ the amicus does not mean that the President has legal authority to order regular military forces to execute federal laws in Illinois,” he wrote, referencing the Office of Legal Counsel’s long-standing memo establishing that the President can only invoke the Insurrection Act at the request of a governor requesting assistance, or to carry out an order of a federal court.
The biggest problem with this theory is that it relies on an unusual order of things: active-duty soldiers are supported by the Guard, not the other way around.
“This upends the normal procedure — typically, in American history, we expect the president to call in the National Guard first and only if they are unable to handle the disorder, turn to the active duty armed forces,” Nunn said. “But given the strength of the legislative historical argument that Marty discovered, that should probably take precedence over the fact that it doesn’t quite fit with how things have worked historically.”
The justices gave affected parties until mid-November to file their supplemental briefs, a slower pace than the Trump administration is accustomed to when asking the Court to rule in an emergency position on its behalf.
This “has a significant impact” on where Section 12406, the federalization status of the National Guard, fits into the statutory framework, Joseph Nunn, an attorney with the Brennan Center’s Liberty and National Security Program, which focuses on domestic military activity, told TPM. “This is sort of a safety net for the safety net of the Insurrection Act.”
That would mean Trump would have to meet the Insurrection Act’s standards for deploying the military on active duty, then seeing it overwhelmed before he could activate the Guard — a far cry from his current deployment attempts, as he tries to send the troops to blue cities across the country in response to fairly mild protests.
The risk here is obvious: If the Court takes this position, Trump could simply invoke the Insurrection Act, effectively bringing active duty soldiers onto American streets.
“Some critics have suggested that this could dangerously encourage Trump to deploy the regular military first before sending in the National Guard — and, of course, he already deployed the regular military to the streets of the United States when he sent Marines to Los Angeles,” said Chris Edelson, an expert on presidential national security power at American University.
But Lederman wrote that Trump also can’t invoke the insurrection law on a whim.
“In making this argument about the literal meaning of ‘regular forces,’ the amicus does not mean that the President has legal authority to order regular military forces to execute federal laws in Illinois,” he wrote, referencing the Office of Legal Counsel’s long-standing memo establishing that the President can only invoke the Insurrection Act at the request of a governor requesting assistance, or to carry out an order of a federal court.
The biggest problem with this theory is that it relies on an unusual order of things: active-duty soldiers are supported by the Guard, not the other way around.
“This upends the normal procedure — typically, in American history, we expect the president to call in the National Guard first and only if they are unable to handle the disorder, turn to the active duty armed forces,” Nunn said. “But given the strength of the legislative historical argument that Marty discovered, that should probably take precedence over the fact that it doesn’t quite fit with how things have worked historically.”
The justices gave affected parties until mid-November to file their supplemental briefs, a slower pace than the Trump administration is accustomed to when asking the Court to rule in an emergency position on its behalf.
That’s not the case, says Marty Lederman of Georgetown Law. In an amicus brief that appears to have caught the justices’ attention, Lederman gives a detailed account of the legislative history of the term “regular forces,” offering pages of evidence demonstrating that it referred to the military. Under his theory, the National Guard was supposed to be called in as a last resort if active-duty service members failed to quell the domestic crisis for which they were deployed.
This “has a significant impact” on where Section 12406, the federalization status of the National Guard, fits into the statutory framework, Joseph Nunn, an attorney with the Brennan Center’s Liberty and National Security Program, which focuses on domestic military activity, told TPM. “This is sort of a safety net for the safety net of the Insurrection Act.”
That would mean Trump would have to meet the Insurrection Act’s standards for deploying the military on active duty, then seeing it overwhelmed before he could activate the Guard — a far cry from his current deployment attempts, as he tries to send the troops to blue cities across the country in response to fairly mild protests.
The risk here is obvious: If the Court takes this position, Trump could simply invoke the Insurrection Act, effectively bringing active duty soldiers onto American streets.
“Some critics have suggested that this could dangerously encourage Trump to deploy the regular military first before sending in the National Guard — and, of course, he already deployed the regular military to the streets of the United States when he sent Marines to Los Angeles,” said Chris Edelson, an expert on presidential national security power at American University.
But Lederman wrote that Trump also can’t invoke the insurrection law on a whim.
“In making this argument about the literal meaning of ‘regular forces,’ the amicus does not mean that the President has legal authority to order regular military forces to execute federal laws in Illinois,” he wrote, referencing the Office of Legal Counsel’s long-standing memo establishing that the President can only invoke the Insurrection Act at the request of a governor requesting assistance, or to carry out an order of a federal court.
The biggest problem with this theory is that it relies on an unusual order of things: active-duty soldiers are supported by the Guard, not the other way around.
“This upends the normal procedure — typically, in American history, we expect the president to call in the National Guard first and only if they are unable to handle the disorder, turn to the active duty armed forces,” Nunn said. “But given the strength of the legislative historical argument that Marty discovered, that should probably take precedence over the fact that it doesn’t quite fit with how things have worked historically.”
The justices gave affected parties until mid-November to file their supplemental briefs, a slower pace than the Trump administration is accustomed to when asking the Court to rule in an emergency position on its behalf.
So far, Trump has tried to argue that “regular forces” refers to local law enforcement and federal agents, who he says are overwhelmed and endangered by anti-ICE protests just miles from the city’s downtown.
That’s not the case, says Marty Lederman of Georgetown Law. In an amicus brief that appears to have caught the justices’ attention, Lederman gives a detailed account of the legislative history of the term “regular forces,” offering pages of evidence demonstrating that it referred to the military. Under his theory, the National Guard was supposed to be called in as a last resort if active-duty service members failed to quell the domestic crisis for which they were deployed.
This “has a significant impact” on where Section 12406, the federalization status of the National Guard, fits into the statutory framework, Joseph Nunn, an attorney with the Brennan Center’s Liberty and National Security Program, which focuses on domestic military activity, told TPM. “This is sort of a safety net for the safety net of the Insurrection Act.”
That would mean Trump would have to meet the Insurrection Act’s standards for deploying the military on active duty, then seeing it overwhelmed before he could activate the Guard — a far cry from his current deployment attempts, as he tries to send the troops to blue cities across the country in response to fairly mild protests.
The risk here is obvious: If the Court takes this position, Trump could simply invoke the Insurrection Act, effectively bringing active duty soldiers onto American streets.
“Some critics have suggested that this could dangerously encourage Trump to deploy the regular military first before sending in the National Guard — and, of course, he already deployed the regular military to the streets of the United States when he sent Marines to Los Angeles,” said Chris Edelson, an expert on presidential national security power at American University.
But Lederman wrote that Trump also can’t invoke the insurrection law on a whim.
“In making this argument about the literal meaning of ‘regular forces,’ the amicus does not mean that the President has legal authority to order regular military forces to execute federal laws in Illinois,” he wrote, referencing the Office of Legal Counsel’s long-standing memo establishing that the President can only invoke the Insurrection Act at the request of a governor requesting assistance, or to carry out an order of a federal court.
The biggest problem with this theory is that it relies on an unusual order of things: active-duty soldiers are supported by the Guard, not the other way around.
“This upends the normal procedure — typically, in American history, we expect the president to call in the National Guard first and only if they are unable to handle the disorder, turn to the active duty armed forces,” Nunn said. “But given the strength of the legislative historical argument that Marty discovered, that should probably take precedence over the fact that it doesn’t quite fit with how things have worked historically.”
The justices gave affected parties until mid-November to file their supplemental briefs, a slower pace than the Trump administration is accustomed to when asking the Court to rule in an emergency position on its behalf.
On Wednesday, the Court requested clarification on whether the term “regular forces,” in the context of the law governing the federalization of the National Guard, refers to regular military forces or regular civilian forces. This definition is essential; Trump is attempting to deploy the Guard using a statute that suggests he can do so when “the President is unable, with regular forces, to execute the laws of the United States.”
So far, Trump has tried to argue that “regular forces” refers to local law enforcement and federal agents, who he says are overwhelmed and endangered by anti-ICE protests just miles from the city’s downtown.
That’s not the case, says Marty Lederman of Georgetown Law. In an amicus brief that appears to have caught the justices’ attention, Lederman gives a detailed account of the legislative history of the term “regular forces,” offering pages of evidence demonstrating that it referred to the military. Under his theory, the National Guard was supposed to be called in as a last resort if active-duty service members failed to quell the domestic crisis for which they were deployed.
This “has a significant impact” on where Section 12406, the federalization status of the National Guard, fits into the statutory framework, Joseph Nunn, an attorney with the Brennan Center’s Liberty and National Security Program, which focuses on domestic military activity, told TPM. “This is sort of a safety net for the safety net of the Insurrection Act.”
That would mean Trump would have to meet the Insurrection Act’s standards for deploying the military on active duty, then seeing it overwhelmed before he could activate the Guard — a far cry from his current deployment attempts, as he tries to send the troops to blue cities across the country in response to fairly mild protests.
The risk here is obvious: If the Court takes this position, Trump could simply invoke the Insurrection Act, effectively bringing active duty soldiers onto American streets.
“Some critics have suggested that this could dangerously encourage Trump to deploy the regular military first before sending in the National Guard — and, of course, he already deployed the regular military to the streets of the United States when he sent Marines to Los Angeles,” said Chris Edelson, an expert on presidential national security power at American University.
But Lederman wrote that Trump also can’t invoke the insurrection law on a whim.
“In making this argument about the literal meaning of ‘regular forces,’ the amicus does not mean that the President has legal authority to order regular military forces to execute federal laws in Illinois,” he wrote, referencing the Office of Legal Counsel’s long-standing memo establishing that the President can only invoke the Insurrection Act at the request of a governor requesting assistance, or to carry out an order of a federal court.
The biggest problem with this theory is that it relies on an unusual order of things: active-duty soldiers are supported by the Guard, not the other way around.
“This upends the normal procedure — typically, in American history, we expect the president to call in the National Guard first and only if they are unable to handle the disorder, turn to the active duty armed forces,” Nunn said. “But given the strength of the legislative historical argument that Marty discovered, that should probably take precedence over the fact that it doesn’t quite fit with how things have worked historically.”
The justices gave affected parties until mid-November to file their supplemental briefs, a slower pace than the Trump administration is accustomed to when asking the Court to rule in an emergency position on its behalf.
On Wednesday, the Court requested clarification on whether the term “regular forces,” in the context of the law governing the federalization of the National Guard, refers to regular military forces or regular civilian forces. This definition is essential; Trump is attempting to deploy the Guard using a statute that suggests he can do so when “the President is unable, with regular forces, to execute the laws of the United States.”
So far, Trump has tried to argue that “regular forces” refers to local law enforcement and federal agents, who he says are overwhelmed and endangered by anti-ICE protests just miles from the city’s downtown.
That’s not the case, says Marty Lederman of Georgetown Law. In an amicus brief that appears to have caught the justices’ attention, Lederman gives a detailed account of the legislative history of the term “regular forces,” offering pages of evidence demonstrating that it referred to the military. Under his theory, the National Guard was supposed to be called in as a last resort if active-duty service members failed to quell the domestic crisis for which they were deployed.
This “has a significant impact” on where Section 12406, the federalization status of the National Guard, fits into the statutory framework, Joseph Nunn, an attorney with the Brennan Center’s Liberty and National Security Program, which focuses on domestic military activity, told TPM. “This is sort of a safety net for the safety net of the Insurrection Act.”
That would mean Trump would have to meet the Insurrection Act’s standards for deploying the military on active duty, then seeing it overwhelmed before he could activate the Guard — a far cry from his current deployment attempts, as he tries to send the troops to blue cities across the country in response to fairly mild protests.
The risk here is obvious: If the Court takes this position, Trump could simply invoke the Insurrection Act, effectively bringing active duty soldiers onto American streets.
“Some critics have suggested that this could dangerously encourage Trump to deploy the regular military first before sending in the National Guard — and, of course, he already deployed the regular military to the streets of the United States when he sent Marines to Los Angeles,” said Chris Edelson, an expert on presidential national security power at American University.
But Lederman wrote that Trump also can’t invoke the insurrection law on a whim.
“In making this argument about the literal meaning of ‘regular forces,’ the amicus does not mean that the President has legal authority to order regular military forces to execute federal laws in Illinois,” he wrote, referencing the Office of Legal Counsel’s long-standing memo establishing that the President can only invoke the Insurrection Act at the request of a governor requesting assistance, or to carry out an order of a federal court.
The biggest problem with this theory is that it relies on an unusual order of things: active-duty soldiers are supported by the Guard, not the other way around.
“This upends the normal procedure — typically, in American history, we expect the president to call in the National Guard first and only if they are unable to handle the disorder, turn to the active duty armed forces,” Nunn said. “But given the strength of the legislative historical argument that Marty discovered, that should probably take precedence over the fact that it doesn’t quite fit with how things have worked historically.”
The justices gave affected parties until mid-November to file their supplemental briefs, a slower pace than the Trump administration is accustomed to when asking the Court to rule in an emergency position on its behalf.
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