The Volokh Conspiracy
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Deference Due? Trump, the National Guard, and the Misuse of Martin v. Mott
A guest post by Joshua Braver and John Dehn.
President Donald Trump's attempts to federalize the National Guard and use it for domestic law enforcement are the subject of ongoing litigation in California, Oregon, and Illinois. What follows is a guest post on this important issue by legal scholars Joshua Braver and John Dehn, two leading experts on legal issues surrounding domestic use of the military. Prof. Dehn is also former US Army officer, who spent fifteen years serving as a military judge advocate. In the post Braver and Dehn explain why courts should generally not defer to the president in addressing the issue of whether his invocation of extraordinary emergency powers to use the National Guard domestically, is legal, and why such deference is not required by the Supreme Court's 1827 decision in Martin v. Mott.
I myself have written about the California litigation here and here, and about the more general issue of judicial review of emergency powers here. What follows below was written by Joshua Braver and John Dehn, not by me (Ilya Somin), though I agree with virtually all their points:
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The Trump administration's efforts to federalize and deploy the National Guard in Los Angeles, Portland, and Chicago has become mired in litigation. But it's not simply the courts versus Trump—the courts themselves are divided over how much deference to afford the President's determination that the conditions necessary for federalizing and deploying the guard have been met. Must courts take the Trump administration at its word, or may they independently determine whether the facts on the ground justify a deployment? No precedent figures more prominently in this debate than the Supreme Court's 1827 decision in Martin v. Mott, which has been cited by scholars as supporting broad judicial deference to presidential determinations that statutory preconditions to both federalization and deployment have been met. This post argues that this conventional reading of Mott as well as its application to these deployments is mistaken: no such broad deference is due as Judge April Perry correctly concluded in her opinion supporting the Chicago TRO.
The cases center on two provisions of 10 U.S.C. § 12406, which authorize the President to federalize the National Guard if (1) "there is a rebellion or danger of a rebellion against the authority of the Government of the United States," or (2) the President "is unable with the regular forces to execute the laws of the United States." Citing both triggers, the President issued a memorandum on June 7 directing that "members and units of the National Guard of any State [be called] into Federal service in such numbers as he considers necessary" to protect Immigration and Customs Enforcement (ICE) operations, agents, and facilities.
Federal district courts adjudicating the Chicago and Los Angeles cases refused to grant deference to the President's determinations and issued temporary restraining orders (TROs) halting both the federalization and deployment of National Guard units. The Seventh Circuit issued a partial administrative stay of the Chicago TRO, permitting the federalization of Guard units to continue but not their deployments. In the Los Angeles litigation, the Ninth Circuit stayed the Los Angeles TRO, reasoning that the district court had failed to grant sufficient deference. Citing Martin v. Mott and "the settled understanding of the Supreme Court and among legal scholars," the Ninth Circuit quoted Mott: "the authority to decide whether the exigency has arisen, belongs exclusively to the President, and his decision is conclusive upon all other persons." The panel stated that, consistent with Mott and later precedent, courts have only a limited role—to ensure that the President made a "colorable assessment of the facts and law within a 'range of honest judgment'" that was "conceived in good faith."
Frustrated and perplexed by this deferential standard, the district court shifted course and struck down the L.A. deployment on narrower, fact-specific grounds. When the administration later attempted to federalize the National Guard in Portland, the district court there was also bound by the Ninth Circuit's more forgiving standard. Even under that standard, however, it issued a TRO—though some question whether the court actually applied the standard as written. It remains to be seen whether the Ninth Circuit will overturn the rulings concerning Portland or Los Angeles.
Given the central role Martin continues to play in this and other emergency powers litigation, this post endeavors to clarify its context and its limited value as precedent in the present litigation. Jacob E. Mott was a militiaman in New York who had been convicted by a court-martial for failing to muster in response to his Governor's orders. Those orders were issued in response to requisitions of troops by President Madison in August of 1814, the same month that the British had invaded Virginia, burned Washington, D.C., and attempted to invade Baltimore during the War of 1812. The British also unsuccessfully attacked Plattsburg, New York in September of 1814 via Lake Champlain.
Mott was court-martialed and convicted in May of 1818. To satisfy the fine imposed, Martin, a deputy federal marshal, seized Mott's mule. Mott then filed suit to reclaim it, arguing (among other things) that the court-martial lacked authority to prosecute him. Addressing these claims, Justice Story first acknowledged that the statute at issue, an earlier version of §12406, is within Congress's constitutional power to provide for calling forth the militia. He then described the power conferred by the statute as a "limited power, confined [in the case] to cases of actual invasion, or of imminent danger of invasion." Story then opined "that the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons," the very passage quoted by the Ninth Circuit.
In context, however, Story was referring only to persons within the chain of command over the militia, not to the courts. He framed the issue as one of military discipline—of obedience to the Commander in Chief. The question that immediately precedes the Ninth Circuit's quoted passage asks: "Is the President the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question upon which every officer to whom the orders of the President are addressed may decide for himself, and equally open to be contested by every militiaman who shall refuse to obey the orders of the President?" The inquiry, in other words, concerns the allocation of authority between the President and the military chain of command—not the courts.
Several aspects of the Martin opinion confirm that Story's focus was the narrow issues of military discipline and obedience to orders. They include:
- Mott was engaged in a collateral attack on his court-martial proceeding for failing to report for duty rather than a challenge to any specific deployment or use of federalized militia members or units. In other words, Mott's challenge to his conviction involved only the authority to federalize of the militia—lawfulness of the order to perform his military duty—not to the specifics of the militia's use.
- Story's analysis is replete with references to the need for military discipline. For example, he observed that "[a] prompt and unhesitating obedience to orders is indispensable" and that allowing officers or militiamen to question presidential orders in this context would be "subversive of all discipline, and expose the best disposed officers to the chances of ruinous litigation."
- Story repeatedly emphasized the need to protect officers who carry out the President's orders from potential legal liability for doing so, such as by punishing those who disobeyed. To emphasize and substantiate this point, he cited Vanderhayden v. Young , a case in which the Court rejected a claim for damages against a military officer who presided over the court-martial of a mobilized New York militiaman who had deserted his post (coincidentally, in Plattsburg, New York).
Moreover, Story relied on a "sound rule of [statutory] construction." Martin is not a decision about the deference required by the Constitution or the political question doctrine, nor did the Court say that the "rule" it observed is mandatory in all cases. Nothing about the decision suggests that it is a rule of construction that should override other constitutional considerations.
Martin is also readily distinguishable from the present deployments not only because of its focus on military discipline, but also because its broader context is radically different. The contextual differences include:
- Martin did not raise any substantial question about the existence of the exigency. At the time, and certainly by 1818 when Mott was convicted, it would have been well known that the British had invaded the United States and had attempted other invasions during the relevant time period.
- Martin arose during a declared war.
- Martin did not address the power to federalize the militia for domestic law enforcement purposes. Even if it had, Martin was decided before the Posse Comitatus Act imposed a general prohibition on the domestic use of federal armed forces to "execute the laws," and the clear applicability of that prohibition to federalized National Guard units pursuant to 10 U.S.C. § 12405.
- When faced with a dubious declaration of martial law for a clearly improper purposes in Sterling v. Constantine, the Court adopted a different standard of review for executive determinations of fact and law. (The Ninth Circuit standard of review reflects an attempt to reconcile Sterling and Martin.)
The standard reading of Martin v. Mott is mistaken, Although the decision might require deference regarding presidential decisions to mobilize the Guard, it does not require deference to the administration's determination that protesters' resistance to ICE agents amounts to a rebellion or renders the President unable to execute the law. As Steve Vladeck has observed, such matters involve determinations of fact and law that courts routinely make, and that must be made to prevent the abuse of statutory powers for improper ends.
Joshua Braver is an assistant professor at the University of Wisconsin Madison school of law. John Dehn is the associate professor and faculty director, National Security and Civil Rights Program at Loyola Law School.
