The Supreme Court refused to issue a stay requested by President Donald Trump after lower courts blocked him from sending the National Guard to Illinois.
The United States District Court for the Northern District of Illinois and the United States Court of Appeals for the Seventh Circuit issued the restraining orders.
Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented.
Justice Brett Kavanaugh did not join the majority’s explanation.
SCOTUS interpreted §12406(3) as saying the president can activate the National Guard when he cannot with the regular military:
Because the statute requires an assessment of the military’s ability to execute the laws, it likely applies only where the military could legally execute the laws. Such circumstances are exceptional: Under the Posse Comitatus Act, the military is prohibited from “execut[ing] the laws” “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” 18 U. S. C. §1385.
“So before the President can federalize the Guard under §12406(3), he likely must have statutory or constitutional authority to execute the laws with the regular military and must be ‘unable’ with those forces to perform that function,” wrote SCOTUS.
Did Trump do that? According to SCOTUS, no:
At this preliminary stage, 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 the Posse Comitatus Act. Instead, he relies on inherent constitutional authority that, according to the Government, allows him to use the military to protect federal personnel and property.
“Thus, at least in this posture, the Government has not carried its burden to show that §12406(3) permits the President to federalize the Guard in the exercise of inherent authority to protect federal personnel and property in Illinois,” concluded the majority. “We need not and do not address the reviewability of findings made by the President under §12406(3) or any other statute.”
Alito, with Thomas, in his dissent, slammed the Court for “unnecessarily” and “unwisely” departing from standard practice.
“It raised an argument that respondents waived below, and it now rules in respondents’ favor on that ground,” wrote Alito. “To make matters worse, the Court reaches out and expresses tentative views on other highly important issues on which there is no relevant judicial precedent and on which we have received scant briefing and no oral argument.”
Alito also said the majority did not explain “why the President’s inherent constitutional authority to protect federal officers and property is not sufficient to justify the use of National Guard members in the relevant area for precisely that purpose.”
Alito said he is “not prepared at this point to express a definite view on these questions.”
I’m pretty sure he’ll have a lot to say when the case lands on his desk.
[Featured image via YouTube]
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