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How about that Supreme Court? For those not following this saga, there's been an emergency application pending at SCOTUS for some weeks regarding Trump's attempt to federalize and deploy the Illinois National Guard in support of various federal immigration enforcement initiatives in the state, primarily around Chicago. The federalization and deployment was enjoined by the District court. On appeal to Seventh Circuit they lifted the injunction as to the federalization but left the deployment part intact. The government then appealed to SOCTUS to stay the injunction on deployment. Today, in a 6-3 decision, SCOTUS denies that stay.
The relevant statute here is 10 USC 12406(3) which provides, in relevant part:
At SCOTUS the question of interest is the meaning of "regular forces" in the statute. In particular, does "regular forces" include civilian law enforcement (FBI, ICE, CBP, etc)? Or does it mean the regular military (Army, Navy, etc)? SCOTUS today gives the latter answer. Six justices rule that "regular forces" means the regular forces of the United States Military. Inability to execute the laws of the United States with the civilian law enforcement apparatus is not sufficient to federalize the National Guard to assist with that purpose. The opinion and dissent break down in some interesting ways.
First, there is an apparent five justice majority (Roberts, Barrett, Kagan, Sotomayor, Jackson) who sign on to the majority opinion and do not write separately. Note that majority opinion also goes further then I mentioned above and seems to say that any presidential declaration that the laws could not be enforced with the "regular forces" requires a situation in which those forces could be deployed. This heavily limits the situations where it would seem to be applicable since there are a lot of restrictions on the use of the United States military for civilian law enforcement purposes.
Second, Justice Kavanaugh writes separately to also deny the stay. His primary objection is that the President has not made the correct kind of declaration. He has declared that he cannot execute the laws with civilian law enforcement but not that he can't with the military. It seems in Kavanaugh's view the only thing that needs to change is the President needs to make the correct declaration. He does not otherwise join the majority opinion about restrictions on that declaration and offers a hypothetical that makes me think he disagrees with it.
Thirdly, Justice Alito and Justice Thomas dissent from pretty much every aspect of the majority opinion. In their view the issue of the meaning of "regular forces" was not properly preserved on appeal. Even if it were it includes civilian law enforcement. Even if it didn't a legal disability (like the Posse Comitatus Act) would satisfy the requirement that the President is "unable" to execute the laws.
Finally, Justice Gorsuch writes in dissent. He focuses in on the procedural issue in the Alito/Thomas dissent and says he would grant the stay on that basis. He otherwise recognizes the questions discussed by the majority as difficult ones and would rather address them in another procedural posture.
So Trump can't deploy the National Guard because ... he hasn't declared that he couldn't enforce the immigration laws using the National Guard?? Seems to me that's contradictory.
Unless Kavanaugh means the regular Army which is expressly forbidden to be deployed within the US barring major insurrection.
I suspect Kavanaugh's objection is largely procedural. He wants the President to use the right words in the declaration nationalizing the guard. The obvious angle might be to adopt the dissent's line that the legal prohibition on deploying the Army is itself the source of the inability to execute the laws using regular forces and therefore he needs to federalize the guard.
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