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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.
I suspect there's some Calvinball going on here regarding the party presentation bit. Getting to the Supremes and then having them change what the argument is about (by asking for supplemental briefing on an issue which tells everyone exactly what they want to hear) is putting a heavy thumb on the scale. Plus, I'm not even sure it was necessary.
The 7th Circuit opinion is here. Page 15:
So the 7th Circuit already said interpreting "regular forces" as "federal officers" means the government loses at this stage (arguing about a stay of the preliminary injunction, not a decision on the merits). Why the Supremes wanted to redefine the argument and specify that "regular forces" means military would really only have one goal: making it nigh-impossible for the national guard to be federalized. There's no reason to go that far if the government already loses on the most generous interpretation of the standard.
This is pretty par for the course in some places, and it doesn't necessarily have any bearing on the case. In my line of work, most attorneys just file pro forma motions without any particularized arguments. The judge doesn't read them, and nobody except counsel hears the real argument until the hearing, at which point the parties are arguing based on discussions they've had attempting to resolve the issue. The judge will often get some ideas that neither party had and ask to be briefed on the issue before he rules. But from what I can tell he doesn't necessarily buy his own arguments since he ultimately finds them lacking once they've been fleshed out. The SC would probably prefer to rule in an anticipated issue now rather than have it come up later in another case, and it makes sense that they'd give the parties a heads up so they can prepare accordingly. I'd rather they get it right the first time than make bad rulings because procedure says they have to. As a body, they aren't shy about making it clear that they can do whatever they want.
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