The State of Illinois had a big win, and Trump a big loss, on the shadow docket in Trump v. Illinois, where a 6-3 Supreme Court refused to allow the federalized National Guard to be deployed. Woo hoo? Much as the outcome may have brought smiles and tears to their respective teams, the rationale behind the ruling hasn’t gotten much scrutiny outside of the legal academy. And it is, well, surprising, peculiar and, quite frankly, not the most useful reasoning. Ilya Somin explains.

The official rationale for Trump’s use of the National Guard here is the supposed need to counter anti-ICE protests in the Chicago area, some of which had allegedly included elements of violence. In order to deploy the Guard, Trump invoked 10 U.S.C. Section 12406, which can only be used to federalize state National Guard forces and employ them for law enforcement in one of the following situations:

1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;

(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or

(3) the President is unable with the regular forces to execute the laws of the United States

No one claims Illinois has been invaded, and – as the Seventh Circuit explained, there is pretty obviously no “rebellion or danger of a rebellion” in Chicago. Thus, Trump primarily relies on the argument that he is “unable with the regular forces to execute the laws of the United States.”

There are two operative phrases at issue here. The first is whether “the President is unable . . . to execute the laws of the United States,” Most people would believe this to be the core problem, that there was no inability to execute the laws of the United States using police and/or federal agents. Of course they could do so, and consequently the authority to federalize the National Guard was lacking.

But no, that’s not what the Supreme Court focused on. Instead, they addressed the meaning of “regular forces,” holding that it meant the regular military as opposed to the state National Guard.

The Government asked this Court to stay the District Court’s order…. We directed the parties to file supplemental letter briefs on an issue that the District Court had addressed but the parties’ initial briefs had not: the meaning of the term “regular forces” in §12406(3). In its supplemental brief, the Government argues that the term refers to civilian law enforcement officers, such as those employed by Immigration and Customs Enforcement or the Federal Protective Service.

Respondents, echoing the District Court, maintain that the term refers to the regular forces of the United States military. We conclude that the term “regular forces” in §12406(3) likely refers to the regular forces of the United States military. This interpretation means that to call the Guard into active federal service under §12406(3), the President must be “unable” with the regular military “to execute the laws of the United States.”

Hey, but a win’s a win, no matter why the Court denied the stay, right? Not so fast.

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.

The Posse Comitatus Act precludes the use of regular military to enforce the law, except where expressly authorized. Yet, the invocation of §12406(3) can only happen after regular military forces are deployed and still the laws can’t be enforced. What circumstances might there be that regular forces can be lawfully deployed despite the Posse Comitatus Act? The Insurrection Act of 1807, as amended, anyone?

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. But the Government also claims—consistent with the longstanding view of the Executive Branch—that performing such protective functions does not constitute “execut[ing] the laws” within the meaning of the Posse Comitatus Act.

In other words had the president invoked the Insurrection Act, then there would be an exception to the Posse Comitatus Act that would permit the federalization of National Guard troops. This comes mighty close to an invitation to the president to claim an insurrection, that the feds are “overwhelmed” by insurrection or rebellion, “in such numbers, or with such force or capacity, as to overwhelm State or local authorities.”

As Ilya points out, it can always be argued that the state and local authorities are “overwhelmed,” since there is always some extent of crime no matter how many cops there are or how they deal with it.

Taken literally, an “inability” to fully enforce the law always exists. In virtually every community there are people who get away with violating federal law. For example, over 50% of adult Americans admit to having used marijuana at some point in their lives; marijuana possession is a federal crime. Many have also violated other federal laws and regulations without getting caught. Moreover, if “inability” exists anytime federal law isn’t fully enforced, it makes the “invasion” and “rebellion” prongs of Section 10246 redundant, since those circumstances virtually inevitably create situations where federal law cannot be fully enforced.

It should well be argued that this can’t possibly be what the statute means when it characterizes violation of federal law as “insurrection or rebellion,” and not routine or mundane violations of the innumerable federal laws on the books at any given moment. But then, such an understanding of the intent has little force when the reading of a statute is hard-core textualist. Sure, there may not be enough words to limit the reach of the Act to what most of us would consider an insurrection, but then, the Supremes could well decide whether an insurrection exists by deferring to the characterization of the president. If the president says there is an insurrection, then there is, and Seal Team 6 stops bombing boats in the Caribbean to stop the insurrection in American cities.