Whenever “whenever” appears…

How a subordinating conjunction might determine liberty’s strength

About 10 minutes into the oral argument that Senior District Judge Charles Breyer convened last Thursday to hear California’s challenge to the federalization of its National Guard, Breyer read the governing statute aloud, pausing to emphasize one word in particular.

The word was “whenever.”

Breyer’s focus perhaps seemed cryptic in open court, but when, in a few short post-hearing hours, he produced a 36-page opinion upholding California’s challenge and enjoining the federalization of the Guard, the purpose became clear. (The Ninth Circuit entered a stay of Breyer’s order shortly thereafter, but Breyer this weekend declined the Administration's request to surrender the case, which remains on path for a preliminary injunction hearing in his court on Friday.)

Trump’s purported authority to federalize the Guard was 10 U.S.C. §12406. That statute reads as follows:

Whenever—
(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(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;

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.

As it has in other settings, the Administration argued that the President has unreviewable discretion to determine the existence of a rebellion for purposes of invoking §12406. Moreover, it averred that the President need not proffer any evidence whatsoever in support of his unreviewable determination.

(For legal jocks, the Administration’s technical argument was that the language of §12406 gives rise to a “political question” under category 3 of the canonical Baker v. Carr case, because it would be impossible to decide the issue “without an initial policy determination of a kind clearly for nonjudicial discretion.”)

The implications of the position are enormous, particularly since Trump is willing to call spam caviar if it aggrandizes his power (or just for lying’s sake). Handing him a Humpty-Dumpty power to define when extreme legal circumstances are met is a recipe for government by permanent emergency—the ideal scenario for a would-be dictator.

Breyer took the Administration’s argument head-on, with a linguistic analysis centering on the “whenever” at the beginning of the provision. The judge explained that “the statute permits the President to federalize the National Guard ‘[w]henever’ one of the three enumerated conditions are met, not whenever he determines that one of them is met.” Otherwise put, the question of the President’s discretion doesn’t arise unless there is, in fact and in the world, a rebellion.

And that determination falls squarely within the ambit of the judicial branch, much like any other statutory term.

Breyer appended to his legal conclusion a nuanced discussion of executive discretion. “To be sure,” Breyer wrote, “based on longstanding deference to the President on matters of national security and foreign policy, courts cannot second-guess a President’s factual determinations in support of a proclamation under the AEA that an invasion or predatory incursion had occurred.”

Breyer’s certainty about deferring to factual determinations but not linguistic meaning is a little puzzling. After all, courts—and more broadly the judicial system—also routinely make final factual determinations.

More concerning, the idea may contain the seeds of a different outcome on the all-important discretion question in the Ninth Circuit Court of Appeals (where the case now lies) or the Supreme Court, which may find Breyer’s distinction somewhat capricious. We know there is a fractious dispute about the degree of unrest in LA, and that Trump has capitalized on characterizations of widespread bedlam that people on the ground say are wildly overstated. Presumably, under Breyer’s analysis, if Trump says there have been 10,000 incidents of violence against law enforcement, while LA authorities report 100, Trump’s false account controls.

Notice that the overall structure of Breyer’s analysis tracks the decisions of the federal courts—including the Supreme Court—in the Alien Enemies Act cases. The governing statute there authorizes the President to deport even lawful aliens when there is a foreign invasion or a predatory incursion by a foreign country. It has been invoked only three times in our history, all in wartime. Trump proffered, dubiously, that the presence of Tren de Aragua gang members in the country amounted to a predatory incursion by a foreign country. Far more dangerous, Trump argued that the courts could not even review his dubious, if not ludicrous, conclusion, because “whether the AEA’s preconditions are satisfied is a political question committed to the President’s discretion.”

Of all the things that have happened in the federal courts during Trump’s second term, the single most important to date has been the Supreme Court’s rebuff of the Administration’s assertion of unreviewable authority under the AEA—by 9–0 and 7–2 votes. More precisely, it is the Court’s insistence that it’s “emphatically the province of the Judiciary” to say if Trump’s basis for invoking the AEA was sound.

At the time when the outcomes of those cases were still in doubt, it felt as though the stakes were existential. The conservative majority on the Court has been quite receptive to arguments of nonjusticiability—the idea that a particular legal issue is beyond the institutional competence of the courts to resolve—and deference to the Executive, especially where it perceives core Article II responsibilities such as foreign policy.

That made the Court’s strong stand for judicial review a huge relief. But it’s now evident that the Administration will continue to play the emergency card again and again in a score of settings. It’s a virtual one-trick pony. And that means it will do so under statutory schemes that may not have the strong anchor of a “whenever” clause—or a clear separation between facts on the ground and the President’s application of them. Should the Supreme Court greenlight the Administration’s argument of unreviewable discretion in one such setting, you can bet that the Administration will play the same card again and again.

With that in mind, here’s a preview of a scary movie coming our way this summer. Historically, most invocations of §12406 have been coupled with an invocation of the Insurrection Act. That law gives greater authority to the President, and in fact permits the classic specter from authoritarian societies: military boots on the ground performing arrests, searches, and other acts of domestic law enforcement. It’s anathema to democratic rule, and intolerable except in the most exigent, last-resort situations where normal law enforcement is overpowered and the barbarians are at the gate.

That may in fact be the reason that Trump has avoided invoking it to date. But nothing in his record suggests restraint if he thinks the Insurrection Act is the one path to carrying out his insane national dragnet of possible undocumented aliens. And on the all-important “whenever” question—the question of whether the Insurrection Act cleanly separates the triggering facts from the President’s judgment—the Act is less clear than §12406.

As with §12406, the Insurrection Act provides a few alternative bases for invocation, and their phrasing is oddly inconsistent and even sloppy. One says that the President can call out the military “whenever [he] considers” that a rebellion makes it impracticable to enforce federal authority by the ordinary course of judicial proceedings. That shouldn’t apply provided state courts are open for business, but what if Trump advances an outlandish judgment to the contrary?

And the following section authorizes the President to “take such measures as he considers necessary” to suppress violence (among other conditions) in a state if it results in deprivation of federal constitutional rights. That was the trigger for the use of the Insurrection Act to overcome the refusal of Arkansas Governor Faubus to follow the federal courts’ command to enroll African-American students at Little Rock Central High School in 1957.

Count on the Administration to argue in either instance that whatever the President considers, however dubious or unwise, is conclusive; there is nothing for the Court to do other than recognize that the President has exercised his discretion.

The better reading in both cases is that the courts remain essential—if only to determine the existence of a rebellion or the deprivation of constitutional rights, as necessary precursors to the President’s exercise of discretion. But it’s not hard to see the concrete risk that the Supreme Court goes the other way and licenses Trump to follow through with whatever dark, dishonest deeds his will serves up.

In a perfect legal world, if the law were sovereign and infinitely flexible and precise, there would be a better, more accurate, and fitting reading still. It would be to take a sort of judicial notice of a fact that is beyond controversy, beyond opinion, beyond politics: that Trump is an inveterate liar who wakes up lying and lies all day. He has long since forfeited his entitlement to the law’s normal great respect and deference to the Executive, both as Commander in Chief and as the leader of a coordinate branch.

A famous maxim of the Court is that “the Constitution is not a suicide pact.” But the Constitution was not designed to come to grips with such a consummate rogue and would-be authoritarian as Donald Trump. In a sense, it falls to all of us to be sure it adapts to the immense challenge. We have to continue to stand vigil as if it’s a patient on life support and an evil doctor is circling.

This turns out to be another entry that reads in parts as if I am forecasting doom. I’m not. I continue to think that democratic rule will prevail, even if, as I also think, it will not emerge from Trump’s sledgehammer blows unscathed. But please, nobody leave the patient’s side! Link arms for the rule of law today, tomorrow, whenever.

Talk to you later.