On Monday, the Trump administration submitted arguments to the Supreme Court claiming that no court — including the Supreme Court — can question Trump’s decision to deploy military troops against US cities.

Trump lawyers wrote that “the President’s determination to call up the National Guard is a core exercise of his power as Commander in Chief over military affairs, based on an explicit delegation from Congress. That determination is not judicially reviewable at all; at minimum, it is entitled to extremely deferential review, under which (Trump’s deployment) should be upheld.”

Claiming Trump called up the National Guard in Chicago “in light of the violent, organized resistance” ICE agents face, Trump attorneys insist his decision is not subject to judicial review, citing a case from 1827 that they apparently have not read.

Martin v. Mott arose from the War of 1812, and held that military subordinates could not second guess a president’s judgment about military threats. Although it is often mis-cited, Martin did not even discuss judicial review, much less hold that no court can ever review a president’s decision.

Americans don’t want this

Most Americans have a strong moral resistance to military intrusion into civilian affairs. An easy majority of Americans today, across party lines, oppose sending military troops into US cities in the absence of a foreign threat.

Our resistance can be traced back to the Revolutionary War. After living under the tyranny of King George III, whose hated armed troops ate their food and slept in quarters they were forced to provide, colonists held a widespread fear of a national standing army, because it threatened individual liberty and the sovereignty of the separate states. Because of that distrust, the founders carefully apportioned responsibility over the “militia” — today’s National Guard — between the federal government and the States.

Article I, Section 8, Clause 15 of the U.S. Constitution grants Congress, not the president, the power to call forth the National Guard “to execute the Laws of the Union, suppress Insurrections and repel Invasions.” That foundational authority in turn supports Title 10 USC 12406, which allows a president to call forth the militia but only under specific, statutorily defined circumstances. It also supports the Posse Comitatus Act, 18 U.S.C. § 1385, which forbids the use of any part of the federal armed forces to execute laws, except where “expressly authorized by the Constitution or Act of Congress,” reflecting “the deeply rooted and ancient opposition in this country to the extension of military control over civilians.”

Exaggerated threats

Trump officials, with daily assistance from Fox News, report extreme violence among ICE protestors, significantly more violence than eyewitnesses, or state and local law enforcement officers, have observed.

Trump lawyers claim ICE agents “are facing incessant violent resistance on the streets of Illinois — including ambushes where their vehicles are rammed by trucks and dangerous projectiles are thrown at them, potentially motivated by bounties placed on their heads by violent gangs and transnational cartels. Federal agents faced with such threats and violence — in Chicago and elsewhere— operate, on a daily basis, in a climate of fear for their lives and safety, forced constantly to focus on self-defense and protection instead of executing federal law.”

It is no surprise that eyewitness accounts largely dispute these claims, often with video evidence. Examples of disputed ICE claims include:

• In instances where ICE agents alleged their vehicles were rammed by activists, video footage showed the federal agents’ vehicles were the aggressors, ramming the other vehicles first.
• Border Patrol commander Gregory Bovino admitted he was not hit by a rock until after he deployed tear gas at a Chicago protest, contradicting earlier claims that it happened in reverse.
• DHS claimed a middle-aged, heavy set woman, a WGN news producer, went out of her way to assault an ICE agent; eyewitness said she was simply standing there taking video. She was eventually released without charges.
• After DHS claimed a “more than 1,000 percent rise” in assaults on ICE agents, reporting from NPR and a review of federal court filings found no public evidence to support that claim.
• Videos circulating online show unprovoked, excessive violence from federal agents against protestors, with several showing agents pointing guns at peaceful observers.

To date, there is no known case addressing what happens when an unhinged president deliberately escalates violence and civil unrest in order to feel powerful/beat his chest/justify siccing the military on US citizens.

‘Regular forces’

The Ninth and Seventh Circuit Appellate courts have addressed Trump’s National Guard deployments into US cities. Both appellate courts rejected Trump’s argument that military deployments are not reviewable, noting that the statute’s plain text lists specific predicate conditions before a president can deploy the National Guard, and “nothing in the text … makes the President the sole judge of whether these preconditions exist.”

The Ninth Circuit decision is awaiting full en banc review, while the Seventh Circuit concluded that facts on the ground weren’t what ICE said they were. The Seventh Circuit decision is now before the US Supreme Court, which recently directed the parties to file supplemental brief letters on the meaning of 10 USC 12406(3), which allows a president to call up the National Guard when he is “unable with the regular forces to execute the laws of the United States.”

Trump’s belief that his deployment of military forces is immune from judicial review is ominous, given his demonstrated lust for violence against unarmed people. His sinister plans for Americans who don’t support him, now officially labeled “domestic terrorists,” will depend greatly on whether the Supreme Court checks him with this case.

• Sabrina Haake is a columnist and 25+ year federal trial attorney specializing in 1st and 14th A defense. Her Substack, The Haake Take, is free.