Originally published at: One Amicus Brief May Have Given Supreme Court an Out in Chicago National Guard Case
The Supreme Court is, apparently, reading its amicus briefs — and one of them may provide an offramp from immediately having to decide whether President Trump has the power to deploy the National Guard into Illinois. On Wednesday, the Court asked for further briefing on whether the term “regular forces,” in the context of the…
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I expect John Roberts and his fellow GOP Toadies to go to whatever lengths are necessary to allow Trump to make the call, and ignore their job AND their oath. WORST Court ever.
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I’m not so sure, yes Trump can count on Thomas and Alito to do his bidding but his 3 new appointees and Roberts himself have to be looking long term and also at their own legacies. And while it will always be the worst court ever, I think it maybe time to redeem itself. Time will tell.
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That’s where I’m at. The GOP operatives masquerading as Supreme Court Justices will just make up a reason rather than tell Trump no. Ever. On anything.
Nice to have wishful thinking though.
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Good morning from Minnesota.
1370 miles and some 24 hours over two days of driving later, Max and I have made it to the new home. No major catastrophes. Serious rain on Thursday morning through Ohio and Chicago wasn’t nearly as bad as it was back when I did this in July.
I did have a moment of positive feeling coming over the Chicago Skyway in bright sunshine and seeing that the Chicago skyline wasn’t burnt to the ground.
Probably belongs in the kitty thread but Max didn’t get sick once. She has finally figured out the best way to deal with a road trip is to park herself on my lap and sleep it off.
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Call me crazy, call me foolish, but I say the Supreme Court ain’t ‘supreme’ no more…..
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We’ve got Sammy Alito fronting the Calvinball quintet, with special guest singer Clarence Thomas. Roberts is strictly a backup singer on this chart.
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I have no doubt that’s what you expect, but you should try harder. This is Issue 3. The bastards only get to Issue 3 if the bastards don’t have 5 votes on Issue 1 and Issue 2. And Issue 3 is an easy out (albeit one that leaves us to the mercy of the Posse Comitatus Act).
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It’s possible that Barrett may have some concerns and Kavanaugh might in his very rare moments of lucidity, but Roberts, Roberts may very well be the absolute zero worst Justice ever, because we know, we’ve seen those instances where he demonstrated he knows better, but still he follows Alito and his sickness in ruling for Trump.
Maybe he’ll discover some well of integrity and courage, you never know.
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I’m not sure that this would be them saying “ No “ to Trump. Just clarifying his choices and hopefully making the decision more difficult
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This slow speed unending legal wrangling and bumping from court to court makes me think sadly of Dan Wang’s book “Breakneck: China’s Quest to Engineer the Future.”
While China’s government of engineers can make decisions and execute almost instantly, we in the US have elected a government of lawyers – and now, of law breakers. Every slightest action has to be opposed in court and heard and re-heard, with endless opportunities (all taken!) for delay and frivolity.
Nearly five years ago, we had an actual President of the United States that attempted to overthrow the count that would have made his opponent the next President, with a rebellious attack upon the actual Congress, in joint session, and secondary goal of assassinating the sitting Vice President. Everybody knew it. The perp should have been frog marched out of the White House in shackles.
No need to remind readers of the litany of other failed opportunies to bring him to justice since then.
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The justices gave involved 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 posture on its behalf.
LOL, of course they aren’t rushing this one along.
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My gut reaction was that they are looking at this brief in the same way they use the dissents to make sure their opinion can’t be undercut. There is nothing stopping this court from using the history and tradition doctrine to point out that even if the legislative history once said that, the words of the legislature don’t matter because we have a history of Presidents federalizing the national guard, even over the wishes of a governor. And that is likely to be enough for Alito, Thomas, and Kavenaugh right out of the gate. I’m sure that Roberts and Barrett could easily get there with some reference to the need for a robust executive to reign over all of us. And because there is very little risk that any democratic president would abuse their office like Trump is here, Gorsuch is also likely to go along with the bunch.
I just can’t get to your optimism that this is some kind of off ramp for them that they would willingly take.
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Which is a signal that they’re not in a hurry to stay the trial court’s TRO. The NG can’t deploy under that order.
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There’s nothing to engage in. It’s just legal-sounding gibberish. Here, allow me to dissect this one sentence at a time.
The Sicko Six don’t do that. This is the Shadow Docket. They don’t even issue majority opinions.
This is statutory law. The Sicko Six have never applied their choose-your-own-adventure “history and tradition” thing to statutory interpretation. They reserve that garbage for disregarding the text of the Constitution.
There is no history of presidents federalizing the National Guard for purposes of domestic law enforcement without the agreement of their governors. Hell, there’s barely any examples of N.G. troops doing “law enforcement” outside their home states at all before the last eight years, and most of that was just governors sending their guys to another state to assist in disaster relief security (or border theater). They weren’t federalized except in the 2020 D.C. BLM protests, and even then it was only the ones ordered to deploy (at trump’s invitation) by Republican governors.
First of all, Rapey McBeerface’s name is “Kavanaugh.” But more to the point, there’s no history or tradition here. They can always just make one up, of course, but that’s also quite true of Point 1 and Point 2. If they tried, they already lost. And note: There were no dissents from yesterday’s order.
Your certainty is belied by the rather obvious fact that they haven’t done so.
trump lit himself on appellate fire over the dire need to deploy the N.G. now now now, and SCOTUS is just letting him burn.
Have you lost the ability to count? Gorsuch gets the Sicko Six to their full complement of six votes. trump only needs five! And he can’t even get that many!
In the context of the statute and the legislative history Prof. Lederman’s brief describes, there’s really no question that “regular forces” refers to the standing armed forces, not federal law enforcement. This is an observation that has evaded the consideration of the plaintiffs, who were locked into trump’s erroneous belief that it referred to law enforcement personnel allegedly being unable to obtain compliance with federal law. It’s the entire premise of him trying to send in the Guard, and he’s just completely wrong about it! So yeah, this is a very straightforward off-ramp for them: Trump hasn’t (and can’t, per the posse comitatus act) sent in the regular armed forces, so he can’t deploy the National Guard.
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They haven’t been Supreme since the Ross court decided Mountain High Enough v. River Wide Enough.
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Q: Did not Kennedy federalize the Alabama Nat Guard to admit 3 black students into UA against Gov Wallace, who physically blocked admission?
I assume a similar legal argument as this was also used in the lawyer ask to void the 9th Circuit decision to allow Oregon NG troops into Portland, after it was revealed that 20 or less Federal Police Officers were a the Portland ICE facility instead of 115 FPOs that DOJ initially reported.
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Or prior…the attempted “bribery” of Zalensky should have had him out of office and unable to run again. One more example of Mitch McConnell’s destruction of America.
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The biggest wrinkle in the theory is that it rests on an unusual order of affairs: Active duty soldiers being backed up by the Guard, rather than the other way around.
That was my thought when I heard the argument, but there is a Federalism component in this matter. Historically the regular army was a very small force often employed to patrol the western territories of the United States. The National Guard fills the role of the historic militia (as in “well regulated militia”) They were run by the states and were under the control of governors.
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