Welcome to this week’s Weekly Constitutional, where a judgment or other formal document is used as a basis of a discussion about law and policy. This week’s legal text is the 36 page order of the US federal court blocking the federal government from using the national guard against US citizens protesting in California.
In PG Wodehouse’s 1909 comic novel The Swoop the United Kingdom is invaded by multiple armies, but nobody much cares. Each invasion is mentioned briefly in the “Stop Press” sections of the newspapers between the late cricket and horseracing results: “Fry not out, 104. Surrey 147 for 8. A German army landed in Essex this afternoon. Loamshire Handicap: Spring Chicken, 1; Salome, 2; Yip-i-addy, 3. Seven ran."
The only excitement is when one of the invading armies demolishes some work of architecture, at which crowds would applaud appreciatively: “the German gunners had simply been beautifying London. The Albert Hall, struck by a merciful shell, had come down… the burning of the Royal Academy proved a great comfort to all. At a mass meeting in Trafalgar Square a hearty vote of thanks was passed, with acclamation…”.
This mass indifference punctuated by moments of enthusiasm is perhaps similar to what is happening in the United States. There is currently what can only be described as a full-blown constitutional crisis, the outcome of which nobody can confidently predict, with fresh constitutional outrages daily. Yet each new item is barely surviving the daily news cycle.
One of the latest constitutional trespasses is Trump mobilising troops against US citizens without any obvious sound legal basis. In many other countries such a move would lead to immediate impeachment and removal. Yet in the US it has passed with hardly any negative remark, beyond the usual protests of the Democrats and other political opponents, and with some acclaim.
The courts, however, have not been silent. The governor of California, where the incident happened, moved swiftly to sue the federal government, and the federal court just as quickly granted a temporary restraining order (TRO) against Trump’s government. The court judgment is worth reading.
The second paragraph of the judgment says plainly: “At this early stage of the proceedings, the Court must determine whether the President followed the congressionally mandated procedure for his actions. He did not.”
The judge continues: “His actions were illegal—both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution. He must therefore return control of the California National Guard to the Governor of the State of California forthwith.”
The federal government purports to be relying on section 12406 of the Federal Code, which provides that whenever (1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation or (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, then “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.”
But as the judge observes, none of these three conditions were met. Indeed, the government did not even try to substantiate any of the three conditions. Moreover, Trump failed to comply with the procedural requirement that any order issued under that statute “shall be issued through the governors of the States”. And furthermore, Trump had federalised the National Guard for an unlawful purpose in violation of the Posse Comitatus Act.
In return, the federal government insists that all Trump needs to do is cite the statutory provision and can then do as he wishes with the national guard. His executive discretion here being outside the jurisdiction of the courts, his action is not justiciable.
The TRO of the federal court has now been stayed by the federal court of appeal, pending an appeal hearing next week. Such stays are not unusual generally in appealed cases, and do not indicate by themselves how the appeal court will decide the case. But as this is an ongoing situation where the president is committing troops against US citizens (and sidelining the relevant state governor), and wants to commit more, the stay means Trump can continue.
What Trump has not done—yet—is seek to invoke the Insurrection Act of 1807, which is part of an unholy trinity of old statutes, the others being the Alien Enemies Act of 1798 and the International Emergency Economic Powers Act of 1977 (which this blog covered here), which provide “emergency” powers to the president over and above those allocated to him by Article Two of the United States constitution.
These three acts of Congress hand to the president powers which are reserved to the legislature. Trump is already (purporting to) use two these acts to the full. Trump has not yet invoked the Insurrection Act, though he and those around him seem keen to do so.
Stephen Miller, the deputy White House chief of staff, has in a series of carefully worded tweets described the California protests as “an insurrection against the laws and sovereignty of the United States”. It seems only a matter of time before an insurrection is declared and an attempt at martial law imposed.
But what Congress gives, Congress can take away. Trump, Miller and others can only get away with misusing these statutory powers because Congress is not asserting itself. And the courts could move more quickly to hear and grant challenges to Trump and his government acting outside of his legal powers. But the challenges are stuck in procedural hell.
And in the meantime, the federal government is by citing emergency powers botching the world trading system and sending people to foreign prisons with no due process. Troops are being mobilised in unprecedented situations with bare, if any, legal justification. There are many more instances of constitutional impropriety, every day.
But these abnormalities are treated as normalities by much of the US media and public. The constitution is being undermined in real time, but it hardly impinges upon those watching daytime television and reality shows.
If constitutional law is supposed to be boring then constitutional crisis may be expected to be dramatic, but what is going on seems humdrum. If newspapers still had a Stop Press column, what President Donald Trump is doing unlawfully would be placed between the late baseball and American football results.
