The U.S. Supreme Court’s renewed scrutiny of how federal law defines “regular forces” as it evaluates President Donald Trump’s attempt to send the National Guard to Chicago could shape the outcome of Oregon’s troop case, legal observers say.
Last week, the Supreme Court asked attorneys in the Illinois case to file additional briefs on how the court should interpret the phrase “regular forces” in federal statute’s Title 10, Sec. 12406, which Trump invoked to call state National Guard members into federal service.
The president may deploy National Guard members when he’s unable “with the regular forces” to execute the laws of the United States, the law says.
Lawyers have disagreed over whether “regular forces” refers to civilian law enforcement — such as Federal Protective Service or U.S. Customs and Border Protection officers — or active-duty military officers.
Now that question is front and center before the Supreme Court as it decides whether to put a hold on an Illinois federal judge’s temporary restraining order that has barred the federal deployment of National Guard members to Chicago.
The Supreme Court asked lawyers in the Illinois case to submit new briefs addressing whether the term “regular forces” refers to the regular forces of the United States military, and, if so, how that interpretation affects “the operation of the federal law” that Trump invoked.
The high court asked for the new briefs by Nov. 10, with replies due a week later.
The Supreme Court’s weeks-long delay since it first began to look at the case after the federal government’s Oct. 17 petition for an emergency stay, or hold, indicates to some legal observers that a majority of the high court doesn’t agree that a hold on the Chicago federal judge’s order is of any urgency.
“Effectively, it’s denying the stay, without saying that,” said Tung Yin, a Lewis & Clark Law School professor.
Professor’s brief draws Supreme Court attention
The Supreme Court’s query on the phrase “regular forces” appears to have been prompted by a friend-of-the-court brief filed by Martin Lederman, a Georgetown University Law Center professor who has taught courses on constitutional law and on presidential authority with respect to the military.
While many courts have zeroed in on a different phrase in the law — what “unable to execute” the laws of the U.S. means — Lederman said they have failed to examine the more significant term “regular forces.”
According to Lederman, it would be “highly uncommon” to refer to civilian law enforcement as any kind of “forces,” and the civilian law enforcement certainly can’t be construed as “the regular forces,” based on the history of the federal statute and the contemporaneous use of the term.
Lederman argued that Trump cannot succeed in invoking that part of the law because he hasn’t called up U.S. active-duty soldiers to enforce the law.
“Because President Trump has not used regular military forces to assist or protect ICE in the Chicago area, he cannot — and he has not — determined that the Executive Branch would be ‘unable’ to execute any federal laws with the aid of such regular military forces,” Lederman wrote in his brief.
For that reason alone, he argued that the Trump administration is unlikely to prevail on having met the precondition of the federal statute in Illinois.
There’s “no doubt the Court has asked for additional briefing regarding the meaning of ‘regular forces’ because at least some of the Court’s members think the brief written by my colleague Marty Lederman addressing that question has raised an important issue,” said Brian Wolfman, a fellow law professor at Georgetown University Law Center.
Courts don’t agree on meaning of “regular forces”
There’s been a split between the federal circuit courts on how the phrase is defined.
Oregon’s U.S. District Judge Karin J. Immergut did not address the term “regular forces” in her preliminary injunction issued Sunday night, but in her initial temporary restraining order she found that the surge in deployment of Federal Protective Service and Homeland Security Special Response Team and other federal law enforcement officers established that the regular forces were able to execute federal laws.
That was in line with the 9th U.S. Circuit Court of Appeals in California’s challenge of Trump’s deployment of 4,000 California National Guard members to the Los Angeles area, which also considered regular forces to mean civilian law enforcement.
A federal district judge in Chicago, though, determined that the phrase refers to soldiers and officers serving in the regular armed forces.
The 7th U.S. Circuit of Appeals reviewing the Chicago judge’s temporary restraining order did not delve into the question, writing that it did not need to “fully resolve these thorny and complex issues of statutory interpretation now,” because it already concluded the Trump administration had not met its burden to call in National Guard members.
According to Lederman, though, the question is “not the least bit thorny or complex.”
“The meaning of ‘the regular forces’ is straightforward — and it is reason enough to conclude that the applicants are unlikely to prevail on the merits,” he wrote.
“It makes sense that Congress would have wanted the state National Guard to be the fallback, not the first line of defense, in circumstances in which what required federal military intervention was a breakdown of local authority (since governors would otherwise be free to call out their own National Guards in circumstances warranting it).”
Lederman’s interpretation “would doom not just the Illinois efforts,” but all the Trump administration’s attempts to deploy Guard members in Oregon and California, wrote Stephen I. Vladeck, a professor at Georgetown University Law Center and a nationally recognized expert on the federal courts, the Supreme Court, national security law and military justice, in his weekly substack commentary.
The historical definition of “regular forces,” presents an “obvious way” for the Supreme Court to block Trump’s deployments, he wrote.
But that also raises the threat that the president could then move to send in the military to the cities.
Vladeck argues in his commentary there would be “no factual or legal basis, at least today,” for Trump to use regular military forces under the Insurrection Act, and that the Insurrection Act is more restrictive than the federal Title 10 statute that Trump has so far relied on.
Historical role of military considered
Lederman also made it clear in his brief to the Supreme Court that he does not mean to suggest that Trump has legal authority to direct military forces to execute federal laws in Illinois, considering the Posse Comitatus Act, which bars military forces from direct “involvement in the execution of laws” or actions that “pervade the activities of civilian authorities.”
While Lederman’s interpretation of Title 10’s language may seem at odds with the Posse Comitatus Act, he strove to make clear to the Supreme Court that the conditions on the ground in Chicago would not allow the president to call in either the military or the National Guard.
He argued that presidents over time have adhered to the direction offered by a deputy attorney general in 1964 to then-President Lyndon B. Johnson regarding the use of soldiers for law enforcement in Mississippi.
Then-Deputy Attorney General Nicholas Katzenbach wrote to Johnson that the president can only send the military to deal with domestic situations “where state and local law enforcement have completely broken down, either because local officials are themselves opposing and obstructing federal law or because they are unable or unwilling to control private groups that are in command …”
In Illinois, no such conditions exist, Lederman wrote.
“The Court should not assume that the President has any legal authority to use the ‘regular forces’ to execute federal laws in a situation such as the one at issue here,” Lederman wrote in his brief to the Supreme Court.
The Insurrection Act requires “a breakdown caused by the state’s unwillingness or inability to enforce its own laws or abide by federal court orders. That’s a much higher bar to clear to which the situations in California, Oregon, and Illinois bear not even the faintest resemblance,” Vladeck wrote in his substack commentary.
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