The National Guard Can Be Federalized Three Ways. None Apply Now.

(Bloomberg Opinion) — President Donald Trump’s recent flurry of attempts to deploy National Guard troops in cities around the country reminds me of an old “block-that-metaphor” line from the New Yorker: “As I look at things with a broad brush, there are lots of things going south out there, and there’s no silver bullet.” With this particular president and his constant whirligig of threats, puffery and offhand remarks, one never knows whether he is announcing a genuine policy initiative or simply reveling in the furious activity he provokes among opponents and critics. But when he wields federal troops as though they’re his personal enforcers, we have to take his threats seriously.

Even if there’s no silver bullet.

The president’s actions now hinge on two key court decisions. On Thursday, the Ninth Circuit Court of Appeals heard oral arguments on whether to lift a temporary restraining order issued by a federal judge in Oregon  blocking the deployment of troops in Portland. The appeals court had already decided that although Trump can federalize the Guard, he can’t deploy troops in the city until the appeal is decided. Whichever way the case is decided, it may be headed to the Supreme Court.(1)

Meanwhile, a federal district judge in Chicago issued a ruling late Thursday temporarily halting the deployment of troops in Illinois. The administration said it planned to appeal. 

Federal troops have been used to put down resistance to federal law for as long as there have been federal troops — and even before. The Whiskey Rebellion collapsed only when President George Washington personally led the combined militias of four states against the insurrectionists. The 1863 New York Draft Riots — in which countless Black residents of the city were murdered — endured until President Abraham Lincoln sent thousands of battle-hardened soldiers, who retook the city after a series of armed clashes with the insurgents. Later in the 19th century, Presidents Rutherford B. Hayes and Grover Cleveland used armed force to break railroad strikes. And in June 1941, six months before the attack on Pearl Harbor, President Franklin D. Roosevelt sent federal troops to California to end a walkout at North American Aviation, which at the time was supposed to be building aircraft as part of the nation’s rapid rearmament. The examples go on and on.

But the issue before the courts today isn’t whether presidents were justified in their use of troops in the past. The question is whether Trump acted appropriately in federalizing the state National Guard, which ordinarily is a militia controlled by the governor. Under federal law, the president may assume control only in cases of invasion, rebellion, or an inability “with the regular forces” to execute the law. The administration has argued that a judge has no authority to second-guess the Commander-in-Chief’s decision on whether federalization is necessary. The Trump-appointed judge disagreed — a ruling that White House aide Stephen Miller, who perhaps knows less of the nation’s history than he imagines, called “one of the most egregious and thunderous violations of constitutional order we have ever seen.”

But the reason we’re seeing more courts blocking actions that previous presidents got away with isn’t some anti-Trump judicial cabal. It’s that we live in a more regulated era —and therefore more litigious — era, one in which, sometimes for worse and sometimes for better, we’re governed less by the rule of law than by the rule of lawyers. Thus, more often than at any time in history, the Lilliputians get to tie down the federal Leviathan.

My libertarian side bursts with joy when the federal government finds itself less able to do as it pleases. My practical side worries. The Oregon judge found that there was no inability to enforce the laws and no invasion — and it’s hard to argue with either conclusion. The court also found that there was no rebellion, and although I’m confident the judge was correct, I worry about her adoption of what seems to me a narrow and lawyerly definition of the term.

I’m not going to quote the definition here, because it’s too long. That’s part of the problem — the creation of a multi-part test that a president must meet before federalizing the Guard. I’m less worried about the details than about the possibility that, if we one day face a true insurrection, a court’s intervention might slow a necessary federal response by demanding a clear statement of facts when, in the midst of a violent cataclysm, the facts are changing by the minute.

But despite the administration’s posturing, that’s not where we are. Protest and dissent aren’t rebellion; they’re democracy in action. Those who interfere with immigration arrests can be arrested and tried — no troops are necessary to do that — and, indeed, it’s already happening. There’s no emergency; certainly, there’s no rebellion.

Still, as the always thoughtful Elaine Scarry has reminded us, the time to think about what we’d do in an actual emergency is before it arises. And although I’m no partisan — it’s been decades since I voted — I do worry that this particular president, whatever one thinks of him at the policy level, has acted in ways that call into serious question how keen his judgment would be in the face of a true emergency. I’m not calling him better or worse than anyone else who’s held the office; the issue is what we see now. He’s the democratically elected president of the most powerful nation on earth, and so he wields his authority legally. At the same time, with his whirlwind, impulsive style, he indulges in public fantasies such as locking up elected officials who stand in his way. Law is important, and getting the analysis right matters; nevertheless, in the end, most things really are downstream from character.

Maybe the old maxim is true after all, and hard cases make bad law. But it may also be true that bad acts make hard cases. Yes, I do worry that using multi-part tests to cabin the president’s discretion in responding to emergencies will, in the long run, prove to be a serious mistake. Nevertheless, I’m certain that leaving this or any president free to declare insurrections and rebellions at will would be worse.

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(1) Or not. As many observers have pointed out, the Trump administration has been strategic in its appeals and has not brought before the Supreme Court many likely losers.

This column reflects the personal views of the author and does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist, a professor of law at Yale University and author of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”

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