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The beginning of the end of Donald Trump's unconstitutional illegal use of the National Guard in states Blue states to federalize them, to take them over, to try to embarrass governors and blue voters may be coming to an end because in a breaking and shocking fashion, in a 6 to 3 decision, the United States Supreme Court has ruled that Donald Trump may not use the National Guard, take over the National Guard in a city or a state unless he's able to use the regular forces of the military. The regular forces of the military fail to allow him to execute the laws, and then, and only then, can he take over the state militia. But then only if Congress allows it, restoring some semblance of checks and balance on the constitutional system. You won't be shocked in this hot take as to who the three dissenters were. You had Alito and Thomas joined by Gorsuch, but Kavanaugh at least in denying the motion to stay, allowing this case to proceed until they get around to handling a full appeal. In Kavanaugh, you have a very interesting person who has now slid over to join Amy Coney Barrett and joined Justice Roberts along with Ketanji Brown, Jackson, Sotomayor and Kagan to form an interesting bloc. But Kavanaugh has a weird set of speculations that sound a lot like January 6, except in his dystopic world it's happening to the federal judiciary. And then I guess he would allow the president to use the militia to stop forces, even though in The Real Life January 6, the Donald Trump didn't do that at all. I'm gonna bring it all together here on Midas touch on this breaking news story at the intersection of law and politics. I am Michael Popak and you're on Legal af. All right, let's get to it. We've been waiting for, wow, a month and a half for this ruling coming out of one of the several places that Donald Trump has criminalized, has federalized the National Guard. This case, Illinois and, and the 7th Circuit Court of Appeals. That is separate and apart from other cases. Although this will impact those other cases that are pending in Oregon and Portland and in California and LA and San Francisco, up to the Ninth Circuit Court of Appeals. So you basically have the ninth Circuit Court of Appeals, the seventh Circuit Court of Appeals, all waiting around for this ruling. Now, we were a little bit suspicious when the Supreme Court asked for additional briefing on one particular term, because everybody on both sides of the case agree that what Trump was trying to do was under a very limited delegation by Congress, because only Congress, only Congress can empower the president to use troops and forces on domestic soil. Has to be a delegation from Congress. And there is a statute, we call it 10 USC 124 06. You're going to hear me talk a lot about 12, 4 06. Little three or three in the hole, as we say, subpart three. And there it says that if there's an invasion, then you can, to repel the invasion, you could use a nationalized federal National Guard. But then the last one is if the president is unable with the regular forces that. To execute the laws of the United States. Those terms are very specific and very defined. Unable with the regular forces to execute the laws of the United States. But you'd think in 150 years or so, they would have defined what regular forces means, and we shouldn't still be debating it in 2025. But no Supreme Court wanted additional briefing. What do you think regular forces are? Donald Trump's administration argued that the regular forces are if we're outmatched by using our federal security forces, the civil civilian forces that are around federal buildings, that are employed by the federal government, or get a federal paycheck, if those are outmatched, then we can tap for backup the National Guard of that state and override the governor. The states argued something different, that under the long history of the term regular forces, it means the armed forces, the military, the army, the Navy, the Marines, the Coast Guard, the, the space force, and all of that. And if that means, if that's the case, then even under that circumstance, you can only use those things, those regular forces. If Congress has allowed you to, has delegated that power to you, remembering that there's something called the Posse Comitatus act, which limits your ability as a president to use regular forces for domestic law enforcement purposes. So you go to your. So under the, under the state's version, you go to your bag. If you're the president, you say, oh, I can use regular forces. No, go look to the congressional statute and see if it allows you to use congressional circumstance forces in these circumstances. If it does use them, and if failing that, then go to National Guard. If you can't use the regular forces, then it might speed up your ability to go and tap the National Guard. Here's what the United States Supreme Court ruled 6 to 3 against Alito, Thomas and Gorsuch. But. But the Kavanaugh concurrence read a lot like a descent to me and I'll explain it to you right here on Legal af. All right, here we go. It says federal immigration enforcement efforts have encountered significant resistance as well as some violence in Chicago. According to the government, federal officers have been obstructed, threatened and assaulted as they attempt to perform their duties. The government also alleges that an Immigration and Customs Enforcement ICE processing facility in Illinois has been the site of frequent and sometimes violent protests. These attacks have greatly impeded, the government says, its efforts to enforce the immigration laws. And so Trump pulled up 300 members of the Illinois National Guard to protect federal personnel and property in Illinois. In calling forth the Guard, the President relied on 10 USC section 124063, which empowers him to federalize the members of the Guard if he's unable with regular forces to execute the laws of the United States. It says in its supplemental briefs that were requested by the court. It says we Directed on page 2, we the Supreme Court directed the parties file supplemental letter briefs on an issue that the district court had addressed, but the party's briefs had not. What is the term regular forces meaning? The government argues that it means the civilian law enforcement officers, such as employed by immigration ICE or Federal Protective Services. Respondents say it's the U.S. military. We conclude this is now the Supreme Court ruling that will impact all the other cases and all the other attempts by Donald Trump to use the National Guard against blue states. We conclude that the term regular forces refers to the regular forces of the US Military siding with the states. This interpretation means that to call the Guard into active federal service, the president must be unable with the regular military to execute the laws of the United States. Because the statute requires an assessment of the military's ability to execute the law, it likely applies only where the military could legally execute the laws. Citing to the Posse Comitatus act, which prohibits the military from executing the laws except in cases where Congress has authorized it. So it creates a little bit of a, of a closed circuit loop that the president would have to analyze whether he's allowed to use the military. And then if he's able, that he uses the military if he can, and if he still can't Execute the laws, then he taps the National Guard. If he can't use the military, then you skip that step. It's like a, it's like a game, like a game tree, decision making tree. Then you skip that step and you go right to federalizing the National Guard. At this preliminary stage, the opinion continues, of the six justices, the government has failed to identify a source of authority that would allow the military to execute the laws in Illinois. The President has not invoked a statute that provides an exception to, to the Posse Comitatus Act. I mean, the Insurrection act is a exception. Is this moving Donald Trump to invoke the Insurrection act in order to use the military as a prerequisite to nationalizing the or federalizing the National Guard? That's what, that's where we're going, folks. The Insurrection act is an exception to the Posse Communistatus act, the opinion continues. Instead, he relies on inherent constitutional authority according to the government, allowing him to use the military. But the government also claims that performing such protective functions does not constitute executing the laws. All right, so if that doesn't mean. Thus, at least in this posture, the government has not carried its burden to show that 12406 permits the President to federalize the Guard in the exercise of inherent authority to protect federal personnel and property in Illinois. It's basically begging or baiting Donald Trump to use the Insurrection act, one of several limited exceptions to the Posse Comitatus act, in a delegation of authority from the Congress. In order to do that first before you call for backup with the state militia. That's where the 6 to 3 is going. Whether Donald Trump takes the bait will be another story. But now let me turn to Justice Kavanaugh's concurrence, which is much more interesting than the three judge justices in dissent, Alito, Thomas and Gorsuch. Here's what he says. He said he goes through a similar analysis, but he says in my view, the statutory term. He agrees that the statutory term regular forces refers to the US military, not to federal civilian law enforcement. However, he says that the court has gone too far. The court starts by concluding that regular forces means the US military. From there does then a complicated and debatable statutory analysis that Kavanaugh does not agree with. So he agrees with the stay, doesn't agree with the further analysis in this three or four page decision. Now here's the part where the irony of KAVANAUGH, Basically describing Jan6 and yet not recognizing that when Trump was last president he failed to call out the National Guard to help the Metro Police who are who failed to hold the line to protect the Capitol. It's just amazing to me that the irony seems to be completely lost. Look how he describes it in such personal terms about the court being attacked. He said the court's illegal interpretation could lead to a potentially significant implications for future crises. Consider a hypothetical Suppose a mob rapidly gathers outside the U.S. courthouse in Philadelphia federal in response to an unpopular decision or to influence the outcome of a pending matter. Sounds a lot like Jan6, don't you think? Suppose also that the mob is threatening to storm the courthouse and attack the federal judges, prosecutors and other personnel inside. You mean like the legislators and their staff inside the Senate and the House and to damage or burn down the building like the Jan Sixers, thereby preventing the execution of federal law, thereby trying to prevent the certification of the election. Suppose further that US Military forces cannot readily mobilize to deploy to the site and time. Like because the President of the United States sat in a dining room and didn't try to mobilize them and didn't try to get the military to head to the Capitol. That the local police and federal court security officers are outnumbered like the Metropolitan Police Department and the Capitol Police. And that the president wants to federalize the National Guard units to protect the courthouse and other personnel. Except Donald Trump didn't. Under the court's order, even in these circumstances, the presidents presumably could not federalize the National Guard. It's almost like he's trolling moderate thinking and liberal people to saying, see, don't you want a future president to be able to call out the National Guard to stop the next January 6th? I'm just gonna put it in the terms of a courtroom in a courthouse. Aren't I cute? No, you're not. And you also don't recognize even though you're you're willing to put a crown on Donald Trump's head and levitate the executive branch above the other two branches of government, including your own. You don't care about anything else but the fact that you don't even recognize that that is at a front to those of us that live through and some of us who survived January 6th is just beyond me. Again, another troll. I'll join in the six to three and I'll block it. But. But let me bring up Jan6 for you. Don't you want a future National Guard to prevent that? The record is clear. Jack Smith gave us the record. We know it and we know it from the speech. He just gave the testimony for eight hours to Congress. Donald Trump sat in his dining room for, what was it, three hours, four hours, letting the Capitol burn, Not calling the Secretary of the army, not calling the National Guard, doing nothing. So don't tell me about what a president should be allowed to do. How about this? First line of defense is if there's an insurrection, to declare an insurrection, call out the military, the standing forces of the military, and let them hit that Capitol to protect the people and property inside and the cradle of our democracy. How about that? That's what the new ruling says. Now this, this new law, which the other courts were waiting on, the ninth Circuit Court of Appeals that just ordered that the troops come out of the streets of LA is only emboldened by this ruling. It's supported by this ruling. Judge Breyer anticipated this ruling in San Francisco. In fact, I'm gonna have Attorney General Bonta from California back on with us for an interview to talk about how he sees this new ruling impacting the Portland, Oregon 9th Circuit case he's involved with and the California case and other cases. Because this will now have a domino effect. In the meantime, I'm Michael Popo. Hit the free subscribe button for legal AF, YouTube and the Midas Touch YouTube channel till my next report. Oh, I'll post this. Order this new opinion in Legal AF substack for paid members. Thank you.
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Can't get your fill of Legal af.
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Me neither.
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That's why we formed the Legal AF substack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the substack. You'll find the court filing and the oral argument there, including a Dale Daily roundup that I do called Wait for it Morning af.
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What else?
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All the other contributors from Legal AO are there as well. We got some new reporting, we got interviews, we got ad free versions of the podcast and hot takes where Legal AF on substack Come over now to free subscribe.
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