The Supreme Court last week blocked President Donald Trump’s attempt to deploy the National Guard in Chicago. The ruling in Trump v. Illinois is a blow to the administration—though not nearly as big a blow as many are reporting it to be.
In fact the Court’s ruling may have perverse consequences. While it limits the president’s ability to use the National Guard, it does not limit—and perhaps even encourages—the deployment of military troops in American cities.
The rationale is a little complicated, so let me explain.
Trump’s executive orders calling up the Guard in cities such as Los Angeles, Portland, and Chicago have thus far relied on a 1994 statute known as Section 12406, which allows deployment of the National Guard without sign-off from a governor if the president is “unable with the regular forces to execute the laws of the United States.”
