In law, history, precedent, and facts matter. For those who want more than headlines, this court filing provides easy access to a wealth of insight into the current controversy over President Trump’s attempt to send troops into American cities.
This amicus brief was filed by attorneys for Citizens For Responsibility And Ethics In Washington on behalf of Mark Graber in support of the motion for a TRO blocking deployment of federalized National Guard troops in Portland, Oregon. It was downloaded from the Federal Court’s PACER document system.
Graber is the Regents Professor in the University System of Maryland, a Distinguished University Professor, University of Maryland, Baltimore, and a Professor of Law at the University of Maryland Francis King Carey School of Law.
Here’s the summary provided in the first section of the brief.
SUMMARY OF ARGUMENT
The Militia Act of 1903–the statutory predecessor of 10 U.S.C. § 12406–was historically understood to authorize the president to federalize state militias only in response to a war or warlike conditions. The law permits the president to call state militias into federal service only when a large armed force is engaged in an invasion, a rebellion, or a substantial uprising that cannot be contained by ordinary forces under the president’s command and that prevents federal courts from operating. The Militia Act of 1903, was designed to respond to that level of crisis. Nothing in the Act’s text or history allows the president to federalize a state national guard in response to sporadic violence during otherwise peaceful protests that do not incapacitate the courts or the execution of federal laws as a whole.
Historical and judicial precedents make clear that courts are empowered-and indeed obligated to review whether the predicate conditions for the president to federalize state militias exist. Supreme Court decisions from the 19th century emphatically rejected the notion of unreviewable presidential discretion to deploy the military on American soil, dismissing the argument as repugnant to our founding principles. As the Court explained, accepting that the military could be used for regular law enforcement would mean “republican government is a failure” and would mark the “end of liberty regulated by law.” Those words ring just as true today as they did in 1866.
The document can be downloaded or displayed in full-screen mode using the links at the bottom right of the document window.
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Out of all the many things that I despise of Trump and his MAGA cult, this challenging and abuse of the freedom of rights that we hold sacred is not one of them.
Our rights are meaningless if we don’t stand up to those who wish to stomp on them and make a mockery of the Rule of Laws that are set forth for the protection of all and not just the privileged few.
If we can’t stand up to facists to protect our cherished rights, then what good are they?
Let’s fight and continue the Good fight against MAGA because that’s what you do against bullies. There will be many more iterations of MAGA in the future, you can bet on it!
Thank you, Ian, for the Graber’s brief. I much liked reading it.
The brief ignores an important historical precedent from the Civil Rights era. LBJ called up the guard in response to a governor who refused to protect its citizens. The citizens were scheduled to peacefully march. And the guard was sent to allow that to happen. Trump is using the same theory. There are blocks in Portland that the public cannot use. Antifa is a violent group that will mob a car of a regular citizen driving down the street. There is video of Portland Police ceding control to Antifa and turning citizens away. I am not trying to draw an equivalence to the events. I agree they are entirely different. But it is not accurate to just skip over the historical use of the guard. Particularly if this is the theory Trump is operating under.