HOWARD TULLMAN JOINS LISA DENT ON WGN RADIO TO DISCUSS HIS INC. MAGAZINE COLUMN ON DUALLING

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TRUMP VS ILLINOIS

Hello, everyone. We are here on a Substack Live on a very, very big development. We've waited for now an extra month since supplemental briefing were ordered in the all-important Trump v. Illinois case, and the justices have now delivered. I think it's a 6-3 opinion. There's a sort of per curiam piece up top,

and then a dissent by Alito joined by Thomas, one by Gorsuch, and But so pleased to be joined by Leah Littman, no relation, but who knows the Supreme Court cold and has digested already this super important opinion that I called at the time they took the case, the Supreme Court's moment of truth.

So, Leah, let's talk a little bit about what happened and then move to its importance.

Yeah, that sounds good. So I guess by way of background, this is a case that involves the president's attempt to federalize the National Guard, to call up state National Guards to assist the federal government with its aggressive, zealous immigration enforcement. The president relied on the statute concerning the president's ability to federalize the National Guard.

And specifically, the president said, I am You know, federalizing the National Guard in California, as well as Chicago and then in Oregon, because he said the regular forces were unable to execute federal law. And his claim.

Can I just stop for a second? Hopefully this will be a conversation. There were a few things then. Right. He had also cited the second characteristic or factor in that same statute under 10 USC saying that what there is a rebellion or.

Yeah.

And so and that seemed to be very much in play. But but then this other one became pivotal. And sorry. Back to you.

Yeah, no, no apologies at all. I also hope it's a conversation. So yes, you know, throughout the litigation, the administration started to lean more on this idea that they were able to and had the authority to call up the National Guard because existing federal law enforcement was incapable of executing federal immigration law because, you know, of protests,

you know, against ISIS immigration enforcement tactics and because they allege state and local law enforcement were unwilling or unable to actually, you know, keep the peace to allow federal immigration officers to actually execute federal law.

And that encompassed like factual determinations. They were saying, well, somebody threw something at us and that's an impediment. And it was a while ago, but There's no real time limit. So there were arguments within the parties of how what is unable mean? And does it just mean like under some duress,

as seems to be happen all the time or truly incapable?

Exactly. Exactly. And there was a debate among the different courts about what level of deference courts owe to the president's determination that the president was unable to execute federal law. And that was really how basically all of the litigation had proceeded up until it gets to the Supreme Court.

That is, the parties and the courts were all fighting over the Do courts defer to the president's assessment, either that there's a rebellion or that the president is unable to execute federal law, i.e. enforce federal immigration law using existing federal law enforcement? And then our friend Marty Liederman enters the case.

Well, before we get to Marty, this is why I saw the case is so important. And this is we talked about the case out of Portland where Judge Immigate had said, okay, we have to defer. You higher courts have told us that, but that doesn't mean we have to swallow interpretations, quote, untethered to the facts.

And to say this is a rebellion would be untethered to the facts. And that was the sort of context going in. And you were just to announce the hero of the day, right?

Well, before I get to the hero of the day, I just want to, on Yeah. not rooted in reality. And instead, you know, based on the president's invention or assertion of facts that just aren't true. You know, that was one point about that.

If they would permit him, he could then go running with that power, even though it rested on a false premise to do all kinds of emergency actions, including in elections and the like. So, yes, from the day they took this case, we were all as a community really focused on it.

Yeah. And again, it had potential spillover effects to other policies like the Alien Enemies Act, whether courts had to defer to the president's determination that there was hostilities against the United States, a tariffs case, whether there's a national emergency there. Anyways, we're now at the United States Supreme Court. And our friend, Marty Lederman, files a brief.

Marty is a professor of practice at Georgetown Law School. He has also served in the Office of Legal Counsel in several Democratic-led administrations. He is a mensch, just a wonderful person. And Marty argued that the president was completely wrong and the parties had just completely missed, you know,

what this federal law involving the National Guard is referring to. Because when it said the president can call up the National Guard when he is unable to execute federal law with the regular forces, Marty said the regular forces referred to the federal military. That is the regular forces of the federal military, not, you know,

ICE and federal law enforcement like the FBI. Well,

including, right, Army, Navy, Air Force, Marines, which might seem counterintuitive, but Marty and others hadn't done it, dug into the wreck, you know, did what the Supreme Court does. At that stage. And, you know, unusual amicus briefs get filed all the time. But then all of a sudden, it's been how long, Leah, a month?

We got an indication that, wow, the court had bit on this loan submission. So, you know, what was the dramatic development then?

So the court asked the parties to respond effectively to Marty's brief and to make their arguments about whether they agreed with him or whether Marty was correct, that this federal law only allows the president to call up the National Guard when the president is unable to enforce federal law using the military,

unable to execute the law using the military. So the parties filed their briefs. Briefing has now been complete for about a month at this point.

And let me just stop there, because typically this is on the emergency docket. And typically these things come up two days later. They come out almost always for the administration. But boom. Instead, this briefing order came out and it was, you know, took a week in itself.

And it's been a month that we've been on tenterhooks in this emergency application. What would they do with this compelling, seemingly compelling, new, completely new statutory argument? Yeah.

Right. Exactly. And today we get a Christmas miracle, a Hanukkah miracle, you know, a pro rule of law decision from the Supreme Court that said the president lacked the authority to call up the National Guard in Illinois because the president was just wrong that the statute allowed him to call up the National Guard.

when he concluded ordinary federal law enforcement was insufficient. Instead, the Supreme Court said this statute only allows the president to call up the National Guard when the entire federal military is unable to execute federal law.

Meaning they lose. They lose everywhere.

This means they lose not just in California. They are not just in Chicago. They lose in California.

They got to start again and actually show good luck to them because they haven't even tried. No one tried until Marty brought this up to bring in the Army, Navy, Air Force Marines. OK, so talk to talk a little bit about the structure of the opinion and the and where

different members of the court apparently were on it. And I'll just say again, when we got that order, it portended, and the time that passed, some kind of real struggle going on in the court and different opinions. And we can now piece that together in retrospect. But the actual U.S. reports...

Yeah. So it's a really short, you know, order that accompanies, a short opinion that accompanies the court stay order. It's per curiam. That is, we don't know who wrote it. Odds are, you know, my money would be on, you know, some combination of the chief justice or Justice Barrett.

Justice Barrett is the circuit justice who oversees applications from the Seventh Circuit. It's just a few short pages. And it says, you is unlikely to succeed on his argument that the lower court was wrong in concluding that the federalization of the National Guard was illegal because the president

only has the authority to call up the National Guard when the president is unable to execute laws using the federal military. Now, this is important.

And if I can, I'll just say, I'll give the sort of money quote. As you say, we have just a few paragraphs after which there's some named dissenting opinions and concurring opinions. But we conclude that the term regular forces in 10 U.S.C. 12406-3, we've been talking about that,

likely refers they don't have to bottom line here for purposes of just denying the emergency application of the United States. likely refers to the regular forces of the United States military. Somewhere, I hope, you know, Marty Liederman has already started an early holiday, you know, eggnog fest or whatever. He really has.

I've never heard of, and I said it at the time, before it all came through, a single amicus make this point. And it's kind of a beautiful thing, even beyond the result, that one person against the whole U.S. government and many other pilots, but that person is right. And the U.S. Supreme Court adopts it.

And 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 law. So there's also discussion about posicomatitis that could come in in future results. But as you say, they are just shut down, dead for everything they've done so far in California, in Portland,

in Illinois, and the like.

Yeah. So I want to talk about that posse comitatus and the possible suggestion about the military's involvement. But first, just bottom line, the opinion is seemingly six to three. That is, it seems like the three Democratic justices, together with the Chief Justice, Justice Barrett and Justice Kavanaugh, all voted to reject the federal government's argument.

Justices Thomas Alito and Gorsuch noted their dissents. Justice Kavanaugh, who agreed with the majority, wrote separately to explain he would have written the opinion a little bit differently. But on this federal military point, I want to answer a question that came up in the chat.

I think it came from CC about why would we want the federal military enforcing federal law? And we don't. And I think this opinion kind of opens up the question of, one, is the president going to attempt to invoke the Insurrection Act? You know,

which would amount to an exception to the Posse Comitatus Act and allow the federal military, you know, to actually enforce federal law, right, to deploy the federal military in the streets in order to just engage in ordinary law enforcement. The president and his advisors have threatened to do so thus far. They have not done so.

And so this opinion says you can't federalize the National Guard until, one, you have attempted to use the federal military, which presumes you can lawfully use the federal military to enforce federal law in some circumstances.

So this is a very important point, just to put a slightly finer point on what they rejected was the effort he's made all over the country under 10 U.S.C. 12406, purposely, it seems to, for political reasons, shying away, even while brandishing the possibility repeatedly of the Insurrection Act. But the court, in rejecting 10 U.S.C. 12406,

And you're right. It would be weird to have military doing law enforcement. But as Lederman showed, that's if you really focus on what they were doing at the time, that's what they said. But the court reserves the question. And if the administration now goes to the Insurrection Act, that will be the question.

Is the use of the military to do basically domestic law enforcement under the Insurrection Act, uh, kosher itself notwithstanding uh this ruling today and is it um is it in fact um okay under the postic comment so there could be this real um conflict between

insurrection act postic commentatus but to set up that um conflict they've got to go you know, back to the start and at a minimum invoke the Insurrection Act. Yeah.

Yeah, exactly. You know, there are various statutes that give the president, you know, different sources of authority, you know, to do similar things. And what the Supreme Court did here is they ruled out one statute as the basis of the president's ability to call up the National Guard, you know, to assist in the enforcement of immigration law.

There are still other statutes that the president might invoke. I agree with you, Harry, that the political costs of invoking the Insurrection Act are much steeper than just federalizing the National Guard and likely might prevent the administration from attempting to rely on the Insurrection Act.

And so that would obviously be a very salutary development because if the administration is not going to invoke the Insurrection Act, then the federal military cannot engage in ordinary law enforcement, which means he cannot determine that the regular forces of the military are unable to execute federal law and supplement those forces with the National Guard. Now,

on the other hand, the hovering question we were worried about and surfaced just a few minutes ago, how much do they defer to the president's determination? This opinion stands for the proposition that, you know, they just did a regular judicial construction. What is what is unable to arm for?

They could have done something like, well, president says so. We are not going to question that. Under the Insurrection Act, we would still have the same series of questions, even if you defer somewhat. If a finding of insurrection is, to quote Judge Emmergut again, untethered to the facts, does that mean you can't even get off the ground?

Or would the court eventually say we're not going to second guess even crazy outlandish factual determination? So that broader point arises. But if it does, and they are really back to square one and under a very different political situation than they were when they first invoked 12406.

Did you have a chance to sort of look at what Alito and Thomas on the one hand and Gorsuch on the very similar were saying? So let me in brief, Alito, it's kind of ironic. Alito and Thomas were bitter about the way that. the case went down, that in such an important situation,

they just ordered up supplemental briefing more than they almost ever do in some of these cases where they have consequential holdings. Should have had a full oral argument, and we've never done 10 U.S.C.

12406.

So they didn't exactly have a direct assault on the reasoning, and also Gorsuch. It was more, you know, too far, too fast kind of idea. And you do kind of wonder, was there, you know, was it always a sort of 6-3 kind of posture once the briefs came in and people were

just waiting out of courtesy for Alito and Gorsuch to finish their dissents? Because this is a long, time in coming, at least for court watchers.

Yeah, exactly. It's about a 25-page total in opinions, and obviously the court had a very big argument session in their December session, so it's possible there was some delay in circulating the different opinions, and that's what led to the delay of the order. It's also possible that some of the justices took some time to evaluate the

different briefs and figure out where they landed on this issue of statutory interpretation.

That's a real good point because it was really out of the blue. Some clerk, you've been in this position, right? There's a whole stack here, some amicus briefs. Some clerk picked up this brief, you know, back in late November and was like, I'm not sure why this is wrong.

And from that point, it was then in the water, and it really spread. There is a one-on-one conversation we did at the time with Marty on our YouTube that we're going to repost just because it's so interesting. Okay, so let's just take final stock of where we are. It seems very unlikely that the administration would

deploy military to these various places and then be able to show or try to show that that wasn't enough. So it seems like the misadventure of 10 USC 12406 is at an end. Would that be your take?

Yes, I think that that is most likely. But I'd also add that, like, you know, I don't know what the next month or the next few months portends. You know, I think you're right that the administration is now in a fundamentally different political position than they were when they started invoking, you know, this statute, you know,

over the summer. In particular, you know, news releases about the Epstein files, right, and other failures of the administration, you know, have meant his approval ratings have plummeted, right, the weakening economy, the fact that the prices haven't gone down. et cetera, et cetera. And so all of those things, I think,

matter in thinking about putting pressure on the administration to get them to avoid trying to assert more expansive theories of executive power. I would also add that I think there is a non-zero chance that, frankly, a criticism of the Supreme Court got to some of the justices.

Because when the Supreme Court allowed the administration to actually sign off Or when they allowed the administration to deploy these roving immigration patrols, you know, with ICE officers, Justice Kavanaugh wrote and said, you know, what's the big deal? These are common sense propositions. These are brief prompt stops.

And another law professor, Anil Kalhan, you know, coined the term Kavanaugh stops. And that has been used to describe all of the horrific interactions between ICE and American citizens, ICE and people with lawful status in the United States, which are not brief, which are not prompt, are very dehumanizing and have very steep costs.

And I think there is a chance that some of that got to the justices and might have made them look more closely at this argument, which doesn't require them, as we were saying, to second guess the president's determinations, but allows them to rule against the administration.

I think it's a great point, Leah, and I think this change of narrative on what about the Supreme Court will feature maybe most prominently in the unpacking of this discussion. You could also say that it's always been the case that as bullish as they are on

executive power and as generally solicitous as they are to the Republican Party, if you take that view, nevertheless, they understood that that there was a threshold that let's take you, this was, as you say, a Christmas miracle. Let's take the opposite position where they're coming out with an opinion, letting him do it.

At that point, I think we would really be soberly asking, can he now take this power? They've just greenlighted based on a fanciful definition and And the American experiment with it, I think, would not have been too crazy a supposition. What can he do to the election? What can he do all the way around?

So it may also be the case that, you know— Barrett and Roberts and Kavanaugh were like, look, you know, whatever, when it comes time that the republic is on the line, the Constitution is not a suicide pact. That'll be the sorts of things being discussed on Strict Scrutiny, your great podcast and others.

But, you know, I just want to, I guess, end with the headline that this was very much anticipated for just this reason, not just the assertion of power, but the deference that came with it. And the court, after the Seventh Circuit unanimously, by the way, and the district court, all said, no, there are limits,

and presumably we'll see. But even if we get to other assertions of power, this also stands for the proposition that it's the court that ultimately, with deference or not, has to interpret statutory terms. If they invoke the Insurrection Act, I think this case stands for the proposition that you can't just say as the administration wants them to.

Their first argument in this very case was you can't even look at this. The administration has said so. End of story. And I think this stands for the very, very important proposition that, uh-uh, there's some deference allowed, but we don't have to adopt Alice in Wonderland false interpretations.

I hope you're right. I think that there are questions of interpretation. For example, did Congress give the president the exclusive authority to make those determinations under the Insurrection Act? And the court would answer that question, and I don't know how they would answer it. As we were saying, the legal question that Eventually, you know,

the Supreme Court decided this case based on is a little bit different than the sorts of questions, you know, about whether there's like a sufficient factual basis, you know, to invoke the Insurrection Act and whatnot.

Sure. But just to, again, kind of align that with the political sort of position, you know, I do think we'll see. But for a lot of people, 10 U.S.C. 12406 kind of left them cold and scratching their head. Insurrection Act. I think the administration understands we've got to go in and take these because

there's an insurrection in California and Portland and Illinois. Right. Really?

I was just in Chicago for Thanksgiving. There's not an insurrection. There's deep fish pizza.

Okay, so now we know. Professor Litman says so, yeah. Hey, thanks so much for being here on basically zero notice and such an important day. We'll hope to be talking to you soon. I'm sure we will in coming weeks about this really important development. Until then, talk to you later.

Take care.

Bye-bye.