{"id":182,"date":"2026-06-16T14:11:23","date_gmt":"2026-06-16T14:11:23","guid":{"rendered":"https:\/\/nationalconsumerreportss.com\/?p=182"},"modified":"2026-06-16T14:11:23","modified_gmt":"2026-06-16T14:11:23","slug":"presidential-discretion-and-the-insurrection-act","status":"publish","type":"post","link":"https:\/\/nationalconsumerreportss.com\/?p=182","title":{"rendered":"Presidential Discretion and the Insurrection Act"},"content":{"rendered":"
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In Trump v. Illinois<\/em>, a majority of the Supreme Court ruled that before federalizing the National Guard under 10 U.S.C. \u00a7 12406(3), the president likely must show that he is unable to execute federal law with the regular active-duty forces of the U.S. military. However, the Court also determined that \u00a712406 is not excepted from the demands of the Posse Comitatus Act, which prevents the U.S. military from participating in the execution of federal law, rendering this provision of the statute essentially unusable in the president\u2019s efforts to enforce his immigration policies. The Supreme Court ruling capped a year of litigation precipitated by the administration\u2019s efforts to use \u00a7 12406 to federalize the National Guard to pursue its immigration activities in Los Angeles, Portland, and Chicago. With its ruling on \u00a712406(3), the Supreme Court further diminished the president\u2019s ability to directly interfere in domestic activities in pursuit of his most controversial policies. With the midterm elections looming and \u00a712406 now unavailable, the likelihood of the current president resorting to the Insurrection Act, the statute affording him the most oppressive domestic suppression capabilities, has only increased.<\/p>\n

Read more Lawfare Daily: For-Profit Cage-Fighting at the White House<\/a><\/p>\n

For years, President Trump has pushed a harmful narrative about \u201crigged\u201d elections. Since taking office in January 2025, the Trump administration has embarked on a systematic campaign of activities designed to undermine the integrity of the upcoming midterm elections. As the midterms in November approach with the distinct possibility of Republican losses in Congress, there is growing reason to anticipate that the president may reach for the most draconian device in his nefarious toolbox to prevent that outcome. By invoking the Insurrection Act, President Trump could dispatch the regular military, the federalized National Guard, federal law enforcement or, arguably, even ICE agents to sites, including polling stations, throughout the country based on his determination that rebellions, or conspiracies, or unlawful combinations were interfering with the midterm elections. With a Republican Congress disinclined to rein in the president\u2019s most zealous and overreaching use of this dangerous statute, it will likely fall to the courts to interpret what the provisions of the Insurrection Act actually mean, and how much deference the president should receive in interpreting those terms. The outcome of the midterm elections and the future course of American democracy may well depend on those judicial determinations.<\/p>\n

10 U.S.C. \u00a7 12406 and Martin v. Mott<\/em><\/strong><\/p>\n

One of the principal issues addressed by the U.S. Court of Appeals for the Seventh Circuit (relating to the presidential effort to federalize the National Guard for deployment in Chicago) and by the (relating to the presidential effort to federalize the National Guard in Los Angeles and Portland) was ascertaining the level of deference that the courts should accord to presidential determinations made regarding satisfaction of the predicate elements of 10 U.S.C. \u00a7 12406. In considering the question, each court examined two elderly U.S. Supreme Court decisions, both of which are likely to figure significantly in any litigation precipitated by an effort to invoke the Insurrection Act.<\/p>\n

Martin v. Mott<\/em>was a replevin action that collaterally attacked the court-martial conviction of a militiaman, Jacob Mott, who disobeyed a presidential call to muster and whose mare had been seized by Martin, a deputy U.S. marshal, to satisfy the fine imposed at that court-martial. Associate Supreme Court Justice Joseph Story\u2019s 1827 opinion addressed various challenges to that order and the prior proceedings. The Mott <\/em>opinion offers the following query:<\/p>\n

Is the President the sole and exclusive judge of whether the exigency has arisen, or is it to be considered as an open question, upon which every officer to whom the orders of the President are addressed, may decide for himself, and equally open to be contested by every militia-man who shall refuse to obey the orders of the President?<\/p><\/blockquote>\n

Answering, Story wrote: \u201cWe are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons.\u201d Since 1827, Story\u2019s answer has echoed through the ensuing years in terms of defining who decides whether \u201cthe exigency has arisen\u201d and whether that decision is susceptible to judicial review.<\/p>\n

Story was commenting on the authority delegated by Congress to the president in the Militia Act of 1795, which is a direct antecedent of the collection of statutes now codified in Title 10 and designated as the Insurrection Act (10 U.S.C. \u00a7\u00a7 251-255). But a closer examination of Story\u2019s comments provides nuance and context to the scope of presidential authority that the justice actually was sanctioning. Before deciding that, under the specific circumstances presented, the presidential authority to decide \u201cwhether the exigency has arisen\u201d was \u201cexclusive,\u201d Story observed: <\/p>\n

The power thus confided by Congress to the President, is, doubtless, of a very high and delicate nature. A free people are naturally jealous of the exercise of military power; and the power to call the militia into actual service is certainly felt to be one of no ordinary magnitude. But it is not a power which can be executed without a correspondent responsibility. It is, in its terms, a limited power, confined to cases of actual invasion, or of imminent danger of invasion. If it be a limited power, the question arises, by whom is the exigency to be judged of and decided?<\/p><\/blockquote>\n

Story\u2019s conclusion that the president should have \u201cexclusive authority\u201d to determine whether an exigency exists was based on his analysis of what would happen if Mott\u2019s claims were accepted: It would undermine good order and discipline in the ranks, weaken the authority of the military chain of command, and threaten national security. His opinion did not address\u2014and in the context of the appeal he was addressing could not have addressed\u2014the general <\/em>ability or authority of courts to review a president\u2019s purported justification for the mobilization and use of the armed forces under a statute, or the legality of any measures he may direct them to employ. No issues beyond the legal authority for the mobilization order, the court-martial, and the resulting seizure were raised in the appeal and any commentary by Story beyond these matters is rightfully viewed as dicta.<\/em><\/p>\n

Nearly two centuries have passed since Mott <\/em>was decided. Still, its interpretation and application have become a focal point in the litigation precipitated last year by the administration\u2019s efforts to federalize National Guard units under the authority of 10 U.S.C. \u00a7 12406 and introduce those federalized National Guard troops into circumstances generally handled by local law enforcement authorities. Mott <\/em>will certainly be scrutinized again if (when?) any presidential invocation of the Insurrection Act is challenged in the courts, and its interpretation and application may be critical, perhaps determinative. The decisions issued by the Seventh (Illinois v. Trump<\/em>) and Ninth () Circuits addressing the administration\u2019s efforts to federalize the National Guard in support of the president\u2019s immigration policies have furnished a more contemporary lens through which Martin v. Mott<\/em> should be read\u2014a lens that should guide applying Mott <\/em>properly to any presidential effort to invoke the Insurrection Act as an attempt to influence, or abrogate, the 2026 midterm elections.<\/p>\n

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The language of 10 U.S.C. \u00a7 12406 reads:<\/p>\n

Whenever\u2014<\/p>\n

(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;<\/p>\n

(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or<\/p>\n

(3) the President is unable with the regular forces to execute the laws of the United States;<\/p>\n

the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia.<\/p>\n<\/blockquote>\n

Last year, the Trump administration sought to deploy the National Guard in Los Angeles, Chicago, and Portland relying on 10 U.S.C. \u00a7 12406 and a presidential memorandum intended to legally justify the mission. Together, these authorities arguably allowed the federal activities to remain within the constraints of the Posse Comitatus Act. Nonetheless, and not surprisingly, each of the attempted deployments precipitated litigation with both the Seventh and Ninth Circuits issuing opinions addressing the proper application of Martin v. Mott. <\/em>If the president invokes the Insurrection Act, it will almost certainly face legal challenges. One of the central questions courts will have to address is how much deference to give the president\u2019s justification for deploying armed forces\u2014both active-duty military and federalized National Guard\u2014against American citizens on domestic soil.<\/p>\n

In both Newsom v. Trump <\/em>and Illinois v. Trump, <\/em>the government asserted, both in public statements and in its legal filings, that Mott<\/em> establishes that presidents possess judicially unreviewable authority to determine the existence of exigent circumstances justifying a domestic use of the armed forces. Taken to its broadest construction in the context of the Insurrection Act, this means that the president may deploy active-duty military and federalized National Guard troops whenever and wherever he deems appropriate and leave those troops deployed for as long as he sees fit. As support for this expansive view, the government relied primarily on the one sentence found in the Mott<\/em> opinion in which Justice Story, in what he described as a \u201csound rule of [statutory] construction\u201d rather than a doctrine of constitutional law, stated: \u201cWe are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons.\u201d The following cases from the Ninth and Seventh Circuits examine and apply Mott<\/em> (arranged chronologically by decision date).<\/p>\n

Newsom v. Trump<\/em>\u2014Ninth Circuit (June 19, 2025)<\/strong><\/p>\n

In Newsom, <\/em>the with Justice Story\u2019s characterization of the question raised as one of statutory construction, saying: \u201cto what extent has Congress, in \u00a7 12406, committed the challenged decision [to mobilize and deploy the Guard] to the President\u2019s discretion\u201d presented purely a matter of justiciable statutory interpretation falling squarely within \u201cthe province and duty of the judicial department to say what the law is.\u201d<\/p>\n

The that whenever a statute, such as \u00a7 12406, \u201ccommits decision making to the discretion of the President, judicial review of the President\u2019s decision is not available.\u201d The Ninth Circuit disagreed, observing that \u00a7 12406 enumerates three predicate conditions for the president\u2019s calling forth of the National Guard without making the president the sole judge of whether any one or more of those preconditions exist. Having concluded that the president\u2019s determination was subject to judicial examination, the Ninth Circuit next addressed the question of whether the president\u2019s decision was owed deference by the court in its review and, if so, how much? It was in considering this critical question that the court examined the holding in Mott <\/em>and concluded that Mott <\/em>\u201cand its progeny\u201d dictate that the president\u2019s determination be accorded a \u201cgreat level of deference\u201d and that its review of that determination be \u201cespecially deferential.\u201d<\/p>\n

Closer examination, however, suggests that the Ninth Circuit\u2019s expansive interpretation of this required deference rests on a more tenuous and debatable foundation than that court acknowledges. The court\u2019s reference to Mott <\/em>\u201cand its progeny\u201d warrants scrutiny: The sole case it identifies is Luther v. Borden<\/em>, decided 22 years after Mott <\/em>in 1849, by Chief Justice Roger B. Taney\u2014who was not even appointed to the Court until nearly a decade after Mott <\/em>was handed down. (The limited reach of this lineage is underscored by Oregon v. Trump<\/em>, decided a few months after Newsom <\/em>in the context of National Guard deployments in Portland, wherethe Ninth Circuit again cited only Mott <\/em>and Luther <\/em>as its authority for evaluating Congress\u2019s delegation to the president of the power to call forth the militia.) <\/p>\n

Luther <\/em>is no prototype for concluding that presidential action \u201ccalling forth\u201d the militia is unreviewable by the courts. In Luther,<\/em> the governor under Rhode Island\u2019s existing charter (which dated back to 1663) declared martial law and requested the president provide federal troops to stop the anticipated violence. President Tyler, however, declared he had no power to anticipate insurrections, and three subsequent requests for assistance were similarly denied. By the time the president decided that intervention might be necessary to prevent the opposition army (led by contending Gov. Thomas Dorr) from using force, the secretary of war had determined that Dorr\u2019s men had dispersed and the already-prepared proclamation would not be necessary. President Tyler, somewhat belatedly, recognized the charter government as the legitimate executive authority in Rhode Island, and Taney\u2019s opinion treated that endorsement\u201cas effectual as if the militia had been assembled under his orders\u201d\u2014an equivalence that obscured a critical factual difference from Mott<\/em>: The militia was never actually called forth. What the Supreme court held in Luther<\/em> was therefore Tyler\u2019s choice of which competing faction constituted Rhode Island\u2019s lawful government\u2014not any decision to deploy the militia, which never occurred. <\/p>\n

The distinction likely explains why Chief Justice Taney characterized Mott <\/em>as involving a question \u201cvery similar\u201d to\u2014but not the same as\u2014the one arising in Luther<\/em>. When the Ninth Circuit nonetheless concludesthat Luther<\/em>\u2019s \u201cview of Martin<\/em> has remained the settled understanding of the Supreme Court and among legal scholars,\u201d it glosses over that difference. Mott <\/em>addressed the president\u2019s authority to call forth the militia during wartime against a foreign invader; Luther <\/em>addressed whether a court could second-guess a presidential determination accompanied only by a belated, and never-executed, expression of intent to mobilize the militia in support of that government. As Taney himself acknowledged in Luther, <\/em>\u201cIt is true that in this case the militia were not called out by the President\u201d\u2014a concession that undermines Luther<\/em>\u2019s fitness as unequivocal confirmation of Mott.<\/em><\/p>\n

A final point regarding the Ninth Circuit\u2019s discussion of Mott<\/em>: The court explained that, although Mott <\/em>directly involved an issue of foreign policy while the Los Angeles deployment of the Guard arose in the context of a domestic dispute, the statutory breadth of \u00a7 12406 includes the federalizing of the National Guard where there is an invasion by a foreign nation. The court then returned to Luther<\/em>,noting that the dispute in Rhode Island\u2014again, one in which \u201cthe militia were not called out by the President\u201d\u2014was an example of a purely domestic confrontation that Mott <\/em>nevertheless governed. Focusing on this domestic\/foreign distinction arguably weakens Mott<\/em>\u2019s standing as the paradigmatic authority for invocations of the Insurrection Act. Unlike \u00a7 12406, none of the statutes comprising the Insurrection Act mention or address its use in the context of an \u201cinvasion\u201d or incursion by a foreign nation\u2014each is framed exclusively as a response to domestic unrest. To the extent Mott <\/em>derives its force from a foreign invasion context, it maps imperfectly onto the Insurrection Act\u2019s purely domestic framework. <\/p>\n

As for the standard of review, the Ninth Circuit framed it as \u201c[c]onsistent with [Mott<\/em>]\u201d\u2014that \u201ccourts may at least review the president\u2019s determination to ensure that it reflects a colorable assessment of the facts and law within a \u2018range of honest judgment.\u2019\u201d Indeed, shortly after issuing its opinion in Newsom, <\/em>the Ninth Circuit, in Oregon v. Trump, <\/em>rejected the government\u2019s argument that the president could federalize the National Guard \u201con no evidence whatsoever\u201d and that courts were precluded from scrutinizing a decision that was \u201c obviously absurd or made in bad faith.\u201d<\/p>\n

Illinois v. Trump<\/em>\u2014Seventh Circuit (Oct. 16, 2025)<\/strong><\/p>\n

The Seventh Circuit devoted considerably less discussion to Mott. <\/em>The court summarily rejected the government\u2019s contention that Mott <\/em>renders the president\u2019s determination of the existence of an emergency unreviewable by the courts, insisting that Mott<\/em>\u2019sbroad language\u201cmust be read in context.\u201d The court specified that the \u201ccontext\u201d in question was expressed in Justice Story\u2019s \u201cincredulity at the prospect that every officer under the President\u2019s command could make his own determination whether an imminent threat of invasion existed and could refuse to obey the President\u2019s orders or be subject to civil liability if he enforced what was later deemed an invalid order.\u201d Continuing, the Seventh Circuit observed: \u201cHere, by contrast, the question is whether courts, not subordinate militiamen, may review the President\u2019s determination under \u00a7 12406, primarily as to whether political protests have become violent to the extent that they constitute a rebellion or that the administration is \u2018unable\u2019 to execute federal law with the \u2018regular forces\u2019 available to it.\u201d Allowing for differences in statutory language between \u00a7 12406 and the Insurrection Act, this is a reasonable distillation of the circumstances likely to present themselves should the president invoke the Insurrection Act in connection with the 2026 midterm elections.<\/p>\n

The Seventh Circuit also observed that while it agreed with the Ninth Circuit that the president should be granted \u201ca great level of deference\u201d on the question of whether one of the statutory predicates exists, it was not prepared, at that early stage of the proceedings (addressing the government\u2019s request for a stay of the district court\u2019s temporary restraining order) to say \u201cexactly how deferential the standard should be.\u201d However, in closing its opinion, the court noted that the government had been unable to satisfy any of the required predicates for action under \u00a7 12406 \u201ceven with the benefit of considerable deference to its judgments.\u201d<\/p>\n

The Seventh Circuit then moved to a topic that will be of considerable consequence in litigation directed at any presidential invocation of the Insurrection Act: the meaning of the specific terms used in the operative statutes. The Militia Act of 1795, the statute at issue in Mott <\/em>and Luther<\/em> and the forebear of the current Insurrection Act, contains only two words that trigger its use: \u201cinvasion,\u201d which was the predicate for its application in Mott<\/em>,and \u201cinsurrection,\u201d which was the predicate in Luther. <\/em>Neither appellate court opinion analyzes the meaning of those terms given that, on the facts presented, the existence of an \u201cinvasion\u201d in Mott <\/em>and an \u201cinsurrection\u201d in Luther<\/em> was not contested. In reference to \u00a7 12406 (which was the statute at issue in both Newsom <\/em>and Illinois<\/em>), however, the Seventh Circuit said the meaning accorded the terms \u201crebellion\u201d and \u201cunable with the regular forces to execute the laws\u201d are matters of statutory interpretation, \u201ca function that is precisely the business of the judiciary.\u201d<\/p>\n

Thus, the Seventh Circuit advised (in the context of examining \u00a7 12406), \u201cwhere neither the President nor the district court is entitled to deference is on the meaning of the statute\u2014what constitutes a \u2018rebellion\u2019 and what it means to be \u2018unable with the regular forces to execute the laws.\u2019\u201d The court noted that these are \u201cmatters of statutory interpretation\u201d and then proceeded to analyze the term \u201crebellion,\u201d which appears in \u00a712406 and in two of the three statutes comprising the Insurrection Act (10 U.S.C. \u00a7\u00a7251 and 252). Noting that \u201cpolitical opposition is not rebellion,\u201d the court concluded that the activities in Illinois cited by the government as the predicate for federalization and deployment of the National Guard did not constitute \u201crebellion\u201d under \u00a7 12406, nor did those alleged activities significantly impede the ability of federal officers to enforce federal immigration laws\u2014the second trigger for invocation of \u00a712406.<\/p>\n

As emphasized by the Seventh Circuit, it is for the courts to determine whether the available evidence is sufficient to satisfy the statutory predicates necessary to trigger the presidential authority to act. This expression of judicial authority is especially significant given that the statutes comprising the Insurrection Act collectively use a host of statutorily undefined terms that serve as the conditions for lawful invocation: \u201cinsurrection\u201d (10 U.S.C. \u00a7\u00a7 251); \u201cunlawful obstructions,\u201d \u201ccombinations,\u201d \u201cassemblages,\u201d \u201crebellion that make it \u2018impracticable\u2019 to enforce the law\u201d (10 U.S.C. \u00a7 252); and \u201cinsurrection,\u201d \u201cdomestic violence,\u201d \u201cunlawful combination or conspiracy,\u201d \u201copposes or obstructs\u201d execution of federal law, or\u2014in the statute\u2019s most expansive formulation\u2014circumstances so hindering the \u201cexecution of the laws of a state that any part or class of its people is deprived of a right, privilege, immunity or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection\u201d (10 U.S.C. \u00a7 253). <\/p>\n

Trump v. Illinois<\/em>\u2014U.S. Supreme Court (Dec. 23, 2025)<\/strong><\/p>\n

The government appealed the Seventh Circuit\u2019s decision to the Supreme Court, where the focus on \u00a7 12406 shifted from the question of the judicial deference owed to the presidential determination to invoke the statute to the meaning of \u201cregular forces\u201d as used in the statutory phrase \u201cunable with the regular forces to execute the laws of the United States.\u201d A majority of the Court concluded that the phrase \u201cregular forces\u201d likely refers to the \u201cregular forces of the United States military\u201d and, because the government had not identified any statute that allowed the president to employ the regular military to \u201cexecute the laws\u201d as stated in \u00a7 12406(3) consistent with the Posse Comitatus Act, the government had failed to establish a predicate for exercising authority under \u00a712406. By resolving the case on these grounds, the majority found it unnecessary to \u201caddress the reviewability of findings made by the President under \u00a7 12406(3) or any other statute.\u201d Consequently, for the majority, there was no need to address Mott <\/em>or Luther <\/em>or the issue of the proper standard of review of a presidential determination made under \u00a712406 or any other statute.<\/p>\n

The Supreme Court\u2019s decision creates a dilemma for the president with respect to \u00a712406. The statute requires that the president demonstrate that he is unable to execute federal law with the use of the U.S. military. However, \u00a7 12406 is not excepted from the demands of the Posse Comitatus Act, which prevents the U.S. military from participating in the execution of federal law in the first place. Arguably, by disposing of the case in this manner, the Supreme Court removed \u00a7 12406(3) from the president\u2019s toolbox with respect to future efforts to use military force domestically while concomitantly making it more likely that the Insurrection Act will, by necessity, become his future tool of choice. <\/p>\n

*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *<\/p>\n

The Seventh and Ninth Circuits\u2019 recent opinions (the Supreme Court having sidestepped the question of the standard of review to be used with regard to a presidential determination under \u00a7 12406) and a closer examination of Mott<\/em>\u2019s and Luther<\/em>\u2019s underlying facts together counsel the same conclusion: Mott<\/em>\u2019s declaration that the determination of the exigency \u201cbelongs exclusively to the president, and that his decision is conclusive upon all other persons\u201d is best read in light of the Court\u2019s concern about the effect on good order and discipline if individual militia members were left to judge the validity of the president\u2019s order. The \u201cexigency\u201d before Justice Story in Mott <\/em>was an invasion of the United States by the most powerful nation on earth that left the White House a burned shell and the entire government in disarray. Aside from the Civil War, no similar \u201cexigency\u201d has ever been visited upon the homeland. As explained earlier, Luther v. Borden<\/em>\u2014in which the president never actually \u201ccalled forth\u201d the militia\u2014is factually unsuited to serve as an endorsement of Mott. <\/em>In sum, it is difficult to conjure any circumstance in which this president invokes the Insurrection Act that will resonate on any level with the \u201cexigencies\u201d found in Mott <\/em>or Luther. <\/em>Those hoary rulings should be read by the courts as furnishing, at most, a precedential gloss to be considered in the overall context of examining this president\u2019s decisions\u2014not through de novoreview,but through a deference extending no further than ascertaining whether those decisions \u201creflect a colorable assessment of the facts and law within a \u2018range of honest judgment.\u2019\u201d<\/p>\n

The source of the president\u2019s power under the Insurrection Act is statutory\u2014not constitutional\u2014and, per Justice Story, is a \u201climited power.\u201d As a \u201climited power\u201d defined by statute, it falls to the courts to interpret whether the statute is properly invoked. A reviewing court must be satisfied that any invocation of the Insurrection Act satisfies every statutory requirement. Both the Seventh and Ninth Circuits have confirmed that the government should not prevail with the argument that the president\u2019s decision is unreviewable. In Newsom, <\/em>the Ninth Circuit specifically rejected the government\u2019s contention that the president could federalize the National Guard \u201con no evidence whatsoever\u201d and that courts were barred from reviewing \u201ca decision that was obviously absurd or made in bad faith.\u201d<\/p>\n

Careful calibration of the judicial deference afforded the president will serve to ensure that the exercise of the \u201climited\u201d delegations of authority made in the Insurrection Act are not abused. This is the prudent judicial approach\u2014not only because of the legacy of this administration\u2019s abuses of power and maladministration, but principally because the Insurrection Act has received virtually no judicial or congressional scrutiny and its statutory text is awash with undefined terms susceptible to dangerous distortion. As a matter of constitutional structure, \u201cIt is emphatically the duty of the Judicial Department to say what the law is\u201d\u2014and so the courts can, and should, undertake the task of careful statutory interpretation to assure that terms such as \u201crebellion,\u201d \u201cunlawful obstructions,\u201d \u201ccombinations,\u201d \u201cassemblages,\u201d \u201cdomestic violence,\u201d and \u201coppose or obstruct\u201d are construed consistently with the First Amendment rights of the people and the 10th Amendment rights of the states.<\/p>\n

In Illinois v. Trump<\/em>, the Seventh Circuit drew a critical distinction between the factual circumstances on which the president bases his determination to act and whether those facts satisfy the predicate conditions the statute identifies as warranting its invocation. Consider the following example: The government presents facts showing that, in a particular locale, there is considerable activity\u2014characterized by the government as highly disruptive and dangerous to election security\u2014that is actually composed of political protests and actions expressing civil dissatisfaction with government interference in the election process. While the president\u2019s decision to act is entitled to an appropriate level of deference, whether those facts adequately satisfy\u2014to use 10 U.S.C. \u00a7 252 as an example\u2014the statutory requirement that there be an \u201cunlawful obstruction, combination, assemblage \u2026 or rebellion\u201d making it \u201cimpracticable to enforce the laws of the United States by the ordinary course of judicial proceedings\u201d is a matter of statutory interpretation for the court. <\/p>\n

One final example illustrates the necessity for calibrated judicial deference and careful scrutiny. In the litigation surrounding \u00a7 12406, the that whenever a statute \u201ccommits decision making to the discretion of the President, judicial review of the President\u2019s decision is not available.\u201d Taken to its logical conclusion, that contention would arguably sanction the president suspending the writ of habeas corpus in connection with an Insurrection Act invocation on the grounds that, in his view, \u201cunlawful assemblages\u201d are making it \u201cimpracticable\u201d to enforce federal law \u201cin the ordinary course of judicial proceedings.\u201d In Ex parte Merryman<\/em>, the Supreme Court ruled that only Congress\u2014not the president\u2014has the authority to suspend the writ. But absent careful and probing judicial review, is there any reason to believe this Congress will countermand this president\u2019s suspension of the Great Writ?\u00a0<\/p>\n

Read more A Kill Switch for Frontier AI<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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Read more Closing the Title 32 Gap in Domestic Counter-UAS Authority<\/a><\/p>\n