SCOTUS, Trump, and the National Guard

 In an unusual situation, the Supreme Court, has postponed issuing any kind of ruling regarding Trump's use of the National Guard in Illinois.(1)  They have requested additional amici briefs and the one by Professor Marty Lederman is particularly on point. (2)

", in order to obtain the requested stay the Applicants must, at a minimum, demonstrate a likelihood of success on the merits. Those merits turn largely on the proper meaning of the phrase “the President is unable with the regular forces to execute the laws of the United States” in 10 U.S.C. § 12406(3)—the statutory precondition the President invoked as the basis for his order “call[ing] into Federal service members and units of the National Guard … in such numbers as he considers necessary to … execute those laws” in Illinois. The parties sharply contest the meaning of the word “unable” in § 12406(3) and whether the proper test was satisfied on the facts of this case."

Trump et al argue that "regular forces" includes ICE and other federal police forces, most notably DHS. Lederman argues that this is incorrect — the term historically and legally refers only to the standing armed forces (i.e., the U.S. military), not civilian agents. Other notes:

Legal precondition not met under § 12406(3):

– The statute allows the President to federalize the National Guard only when he is unable to execute the law with regular forces.
– Since the President did not attempt to use the military, nor determine their insufficiency, the requirement was not met.

Judicial review is appropriate:
– Lederman pushes back on the idea that the President’s decision is unreviewable. He asserts it is within the courts' role to interpret whether the statutory conditions were lawfully fulfilled.

No “rebellion” in Chicago:
– The Solicitor General also claimed the President could act under § 12406(2), which applies in cases of “rebellion.”
– Lederman refutes this, noting the President did not invoke that provision and that the situation in Chicago does not legally qualify as a “rebellion.”

Limits on using military for law enforcement – Posse Comitatus Act:
– Even if the President wanted to use the military, Lederman notes he may be barred by the Posse Comitatus Act, which restricts use of federal armed forces in domestic law enforcement without explicit legal authorization.
– Importantly, he argues that if the President lacks authority to use the military (due to statutes like the Posse Comitatus Act), that doesn’t mean he can simply use the National Guard instead. That would create a legal loophole Congress likely never intended.

By emphasizing the legal and historical use of the term “regular forces,” he shows that allowing its redefinition to include civilian agencies could dangerously lower the threshold for military-style interventions in domestic matters. This could erode the balance of power between states and the federal government, and undermine the principle of civilian control.

Trump has hinted on numerous occasions he would simply use Appellate Void (3) to get his wish, but it's unlikely he would do the same (assuming he loses) with SCOTUS. Then again, with this guy, you never know.

(1)Donald J. Trump, President of the United States, et al. v. State of Illinois and City of Chicago: It is before the Supreme Court of the United States, docket number No. 25A443, and involves an application for a stay of a lower court order from the United States District Court for the Northern District of Illinois.

(2) https://www.supremecourt.gov/DocketPDF/25/25A443/380249/20251021211611551_25A443.amicus.msl.1021.pdf

(3) Appellate Void (as I mean it from a brief I read) would be a deliberate strategy by the administration to get their way simply by ignoring the adverse ruling of a lower court.  The winner in such a case cannot appeal, only the loser (assumed to be the administration) in which case the government doesn't appeal, just does what it wants. The only recourse of the courts would be citing them for contempt and sending the marshal's after them. Who? You ask? Presumably the lawyers arguing the case.  I have no idea.  

In effect, the appellate void constitutes a reverse Marbury v. Madison. Instead of the Supreme Court asserting the power of judicial review, while leaving the President powerless to push back, the President would assert the power to defy the federal courts, while leaving the Supreme Court powerless to respond. The Court’s recent decision in Trump v. CASA, Inc., opens the door to a more subtle variant of this strategy. After CASA, an administration could comply with court orders only as to specific plaintiffs, while continuing to enforce the challenged policies against everyone else. By refusing to appeal, the President would deny higher courts any opportunity to weigh in, without actually defying any binding judicial order.  

https://www.lawfaremedia.org/article/the-appellate-void--trump-could-defy-judges-without-confronting-the-supreme-court 

and

Andrew Coan, The Appellate Void, Arizona Legal Studies Discussion Paper No. 25-28 (2025), available at SSRN: https://ssrn.com/abstract=5571120.

Only SCOTUS case ever to result in contempt was U.S. v Shipp.  Read a great book about it: Contempt of Court: The Turn of the Century Lynching That Launched a Hundred Years of Federalism by Mark Curriden & Leroy Phillips