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(Bloomberg Opinion) — President Donald Trump’s recent efforts to deploy National Guard troops to cities across the country reminded me of an old “block-that-metaphor” line from The New Yorker: “As I look at things with a broad brush, there are a lot of things going south, and there’s no silver bullet.” With this particular President and his constant threats, panic, and absurd comments, no one knows whether he is announcing a real policy initiative or simply reveling in the incendiary activity of instigating protests among opponents and critics. But when he uses federal troops as if they were his personal enforcers, we have to take his threats seriously.
Even if there is no silver bullet.
The President’s action now depends on two major court decisions. On Thursday, the Ninth Circuit Court of Appeals heard oral arguments about a federal judge in Oregon lifting a temporary restraining order blocking the deployment of troops to Portland. The appeals court had already decided that although Trump can federalize the Guard, he cannot deploy troops to the city until the appeal is decided. Whichever way the case is decided, it may be taken to the Supreme Court.(1)
Meanwhile, a federal district judge in Chicago issued a ruling late Thursday temporarily halting the deployment of troops to Illinois. The administration said it plans to appeal.
Federal troops have been used to put down resistance to federal law for as long as there have been federal troops – and even before. The Whiskey Rebellion collapsed only when President George Washington personally led the combined forces of the four states against the rebels. The New York Draft Riots of 1863 – in which countless black residents of the city were murdered – continued until President Abraham Lincoln dispatched thousands of battle-hardened soldiers, who retook the city after a series of armed clashes with the rebels. Later in the 19th century, President Rutherford B. Hayes and Grover Cleveland used armed force to break up railroad strikes. And in June 1941, six months before the attack on Pearl Harbor, President Franklin D. Roosevelt sent federal troops to California to end a walkout at North American Aviation, which was building aircraft at the time as part of the country’s rapid rearmament. The examples go on and on.
But the issue before the courts today is not whether the use of troops by presidents in the past was justified. The question is whether Trump acted appropriately in federalizing the state National Guard, a militia typically controlled by the governor. Under federal law, the President may assume control only in cases of invasion, rebellion, or inability to execute the law “with regular forces.” The administration has argued that a judge has no authority to second-guess the commander-in-chief’s decision whether federalization is necessary. A Trump-appointed judge disagreed with the ruling — White House aide Stephen Miller, who probably knows less about the country’s history than we think we do, calling it “one of the most egregious and blatant violations of the constitutional order that we have ever seen.”
But the reason we’re seeing more courts blocking actions that previous presidents have gotten away with is not an anti-Trump judicial caucus. It is that we live in a more regulated – and therefore more litigated – era, in which, sometimes for worse and sometimes for better, we are governed less by the rule of law than by the rule of lawyers. Thus, more often than at any other time in history, the Lilliputians get a chance to tie down the federal Leviathan.
The libertarian side of me rejoices when the federal government finds itself less able to do what it wants. My practical side is a matter of concern. The Oregon judge found there was no inability to enforce the laws and no invasion — and it’s hard to argue with either conclusion. The court also found that there was no rebellion, and although I believe the judge was right, I am concerned about his adoption of a narrow and legalistic definition of the term.
I’m not going to quote the definition here, because it’s too long. That’s part of the problem – the creation of a multi-part test that the President must meet before federalizing the Guard. I am less concerned about the details than about the possibility that, if we one day face a true insurrection, court intervention might slow down a necessary federal response by demanding a clear statement of the facts when, in the midst of a violent cataclysm, the facts are changing by the minute.
But despite the administration’s stance, we are not there. Protest and disagreement are not rebellion; They are democracies in practice. People who interfere with immigration arrests can be arrested and prosecuted – no troops are required to do this – and, in fact, this is already happening. There is no emergency; Of course, there is no rebellion.
Yet, as the always thoughtful Ellen Scarry reminds us, now is the time to think about what we will do before a real emergency arises. And although I am no partisan – it has been decades since I voted – I am concerned that this particular President, whatever he thinks of him at the policy level, has acted in a way that raises serious questions about how sharp his judgment will be in the face of a real emergency. I’m not calling him better or worse than anyone else in this position; The issue is what we see now. He is the democratically elected president of the most powerful nation on Earth, and so he exercises his authority legally. Also, with his stormy, impulsive style, he indulges in public fantasies like shutting down elected officials who get in his way. The law is important, and getting the analysis right matters; Yet, ultimately, most things are really down to character.
Maybe the old adage is true after all, and hard cases make bad law. But it may also be true that bad actions make matters difficult. Yes, I am concerned that using multi-part tests to limit the president’s discretion in responding to emergencies will, in the long run, prove to be a serious mistake. Still, I’m sure it would be worse to leave this or any president free to declare rebellion and insurrection at will.
More from Bloomberg Opinion:
(1)Or not. As many observers have pointed out, the Trump administration has been strategic in its appeals and has not brought many potential losers before the Supreme Court.
This column reflects the personal views of the author and does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Stephen L. Carter is a Bloomberg Opinion columnist, professor of law at Yale University, and author of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”
More stories like this are available at bloomberg.com/opinion
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