Justice Kavanaugh sends a signal on Insurrection Act

Adam Liptak writing for The New York Times:

Justice Brett M. Kavanaugh sometimes says the quiet part out loud. He did that last month when the Supreme Court refused to let President Trump deploy National Guard troops in Illinois.

The decision was a rare loss for the administration at the court, and it seemed to prompt Mr. Trump to abandon his efforts to deploy troops in Illinois, Oregon and California.

But Justice Kavanaugh, in a footnote in a concurring opinion, suggested that the ruling could be a speed bump on the road to greater presidential power. He pointed to the possibility of Mr. Trump invoking a different law, the Insurrection Act, to send more conventional military troops to American cities.

Less than a month later, Mr. Trump suggested he might do exactly that in response to violence and protests in Minneapolis.

“If the corrupt politicians of Minnesota don’t obey the law and stop the professional agitators and insurrectionists from attacking the Patriots of I.C.E., who are only trying to do their job, I will institute the INSURRECTION ACT, which many Presidents have done before me,” he wrote on Thursday on social media.

In his own social media post hours earlier, Todd Blanche, the deputy attorney general, had called the opposition to immigration raids in the state a “Minnesota insurrection.”

Mr. Trump has long floated the possibility of invoking the act, and he did not need a sentence in a footnote to give him any ideas. But Justice Kavanaugh’s statement did make plain that the Supreme Court’s action in blocking one kind of deployment could set the stage for other, more aggressive ones.

Mr. Trump relied on a different law to order National Guard troops to cities last summer, an obscure measure adopted in 1903 and 1908 that said deployments were allowed for three reasons.

One, concerning foreign invasions, plainly did not apply to the events in Illinois. The second permissible reason for deploying the Guard was if a rebellion was underway, or if there was danger of one. That is a stretch, and the majority did not cite it, much less discuss it. The court’s order focused on the third reason: the president’s right to deploy the National Guard if he is unable to execute laws “with regular forces.”

Five justices joined the unsigned majority opinion, which rejected the Trump administration’s position that “regular forces” referred to civilian law enforcement like Immigration and Customs Enforcement agents. Instead, the majority said, the term referred to the military. Since there had been no showing that those forces would be unable to execute the laws, the administration lost — at least for the time being.

Justice Kavanaugh voted with the majority but did not sign its opinion, and accepted only part of its reasoning. Such a “concurrence in the judgment” is unusual in cases decided on the court’s emergency docket.

Speaking for himself, Justice Kavanaugh surveyed the legal landscape and said what the majority had left unstated.

“As I read it,” he wrote, “the court’s opinion does not address the president’s authority under the Insurrection Act.”

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