Michael Popak (3:02)
Order in the last few hours from the United States Supreme Court, a curious little order. But I think it signals to Donald Trump that he may be in trouble with his continued bid to federalize the National Guard, embarrass blue state leaders, blue state mayors and blue state governors, which is all he's really doing. And I think the Supreme Court may, may be trying to find a way to put a stop to it. It's all buried in a paragraph from, from the United States Supreme Court in the last few hours. I'm going to break it down for you right here on the Midas Touch Network and on Legal AF. We've been waiting for about 10 days for the United States Supreme Court to make a ruling on an emergency application from the ruling of the 7th Circuit Court of Appeals, which sits over Illinois, which blocked Donald Trump's use of the National Guard deployment of the National Guard on in Chicago and in Illinois, finding that his he was not properly exercising power, didn't have the right to exercise power under 10 USC 124 06, a statute that there wasn't an invasion of a foreign country into America that he was trying to stop. There wasn't a rebellion. And it all came down to whether Donald Trump, as The language of 12406 lists out whether Donald Trump and any president through, through the use of regular forces, could not execute the law, the federal law. And so looking at facts on the ground, the 7th Circuit agreed with the judges in Illinois and said that doesn't seem to be the problem in Illinois. You don't get to just take over the National Guard when you feel like it. That went up to the 7th Circuit, that went up to the Supreme Court on an application by, by the Trump administration on an emergency app. We've been waiting 10 days now. I speculated at one point that we were waiting on not the decision, that the decision has already been made in some combination five to four, six to three, something like that. But we were waiting on the writing of the dissents. See, when you issue a ruling on an emergency order, it usually is only a page as opposed to the hundreds of pages sometimes on Supreme Court decisions on the regular docket, but that you get with it 8 or 10 or 12 or 20 pages or more of dissents or maybe concurrences concurrence means I agree in principle with most of the majority decision, but I want to be heard separately. A dissent is I don't agree with anything that the majority just did and I want to register my dissent. And usually that takes a minute. It doesn't take a minute to collect the votes to figure out whether we have five votes to make a ruling at the Supreme Court level. But it takes a while to write these other companion pieces of paper. I don't think that's what's happening any longer because we got an order in the last few hours from the Supreme Court that said that the emergency application was originally went to Amy Coney Barrett, who sits over the 7th Circuit as the first judge. It got referred to the full bench. That was all normal for a decision. But they want additional briefing through the month of November and on the and the issue. And I was like, oh, that's interesting. What's the issue? Well, here's the problem. Here's the red flag for Donald Trump. The issue they want briefed and the only additional issue they want brief. And they'll take briefing from friends of the court briefs as well, strangers who are filing briefs, is whether the term regular forces, as is used in 12406, encompasses the US military. It's a very interesting question. I think any fair reading of that statute is that using local law enforcement and using federal officers, not militia, not military, can Donald Trump in that combination of regular forces execute the law? In other words, can he continue to grab people off the streets in his immigration, removal and deportation program, get them to the ICE detention center and have them processed, yes or no? I mean, protesters in front of the ICE detention center. I mean, is that really stopping the, the movement of, of human beings through this immigration and removal program? Doesn't seem to be. In fact, there was, there were citations in the record by the 7th Circuit to bragging by Homeland Security and bragging by the Department of Justice that nothing was going to stop them. And they were very successfully processing thousands of people off the streets of Illinois. Okay. The statutory language talks about regular forces. I've always interpreted that to mean local law enforcement, cops on the beat, ice, Customs and Border Patrol, whatever the regular forces of the president are. And that's, that's why regular forces and not, of course, not the military, because the military would then move into the Posse Comitatus act, which says, and you have to read these things in parallel and try to reconcile them. And it looks like that's what the Supreme Court's trying to reconcile this statute that allows the commandeering and deployment of the National Guard by a president with another statute that says he can't use the military on domestic soil for law enforcement purposes. And so how do you put those two things together? That looks like what they are struggling with and they don't seem to have the votes. I don't, I mean you have to read the two things in harmony. You can't find them violative. I mean you can take a statute and say the way it's being read violates the constitution and Article 2 powers because this Supreme Court is always concerned with Article 2 Powers of the president under the Constitution. So what they're really reading is Article 2 powers on domestic soil without a war. So he's not commander in chief. This isn't a war. This is just domestic disturbance First Amendment expression at best. How do you read Article two powers in conjunction with Posse Comitatus powers in conjunction with the, the statute 12406 that allows under limited circumstances, three circumstances to take over the National Guard if you're the president? That's what they're struggling with. And that's interesting that they don't have the, that Trump does not have the votes right now to give him the power to do what he's done. And they seem to be hung up on this issue. My interpretation would suggest that there's, there may be five votes to block Trump on, on this particular, in this particular area because I, you know, they'll have to go back and look at the legislative history. They'll have to go back to the 1700s and 1800s to see what regular forces meant in history because that's how the Supreme Court operates with historical precedent. But I don't think it's the military because the rare circumstances when the presidents have used the military, including like Abraham Lincoln, you know, we were talking about rebellion and therefore sending in the troops to. So that was a, that was a different section of the three part test for 12406 we're not under rebellion, we're under regular forces are incapable of allowing the president to execute his law. The fact that they're hung up on that I think is a terrible sign for Donald Trump. Now we'll see as we see the further briefing over the course of November. And then of course I don't think there's going to be oral argument. I think we're just going to get a ruling that pops out. Sounds like one or two, including a MAGA is on the fence about Donald Trump and giving him this presidential superpower. And we'll continue to follow it all right here on Legal AF and the Midas Touch Network. The way to help us continue to bring you this type of honest commentary is to hit the subscribe button, the Midas Touch slide over to Legal AF YouTube as we as we march towards a million, it's a million subscriber march over on legal AF YouTube. We're going to hit it be in the next month or so with your help. And that's that subscriber base, to put it bluntly, is what keeps us on the air. It's what keeps the content coming to you. And then of course we got Legal AF substack as well, where you can become a paid member and now you're a card carrying member of the Legal AF community. So until my next report, I'm Michael Popak.
