The argument behind yesterday’s ruling

Kudos to Marty Lederman for coming up with a winning argument:

The Supreme Court’s refusal on Tuesday to let the Trump administration deploy National Guard troops in the Chicago area was in large part the result of a friend-of-the-court brief submitted by a Georgetown University law professor named Martin S. Lederman.

The argument Professor Lederman set out, and the court’s embrace of it, could help shape future rulings on any further efforts by President Trump to use the military to carry out his orders inside the United States.

Professor Lederman’s brief said that the government had misunderstood a key phrase in the law it had relied on, which allows deployment of the National Guard if “the president is unable with the regular forces to execute the laws of the United States.”

The administration said “the regular forces” referred to civilian law enforcement like Immigration and Customs Enforcement. Professor Lederman argued that the great weight of historical evidence was to the contrary.

The regular forces, he wrote, was the U.S. military. And, he added, “there is no basis for concluding that the president would be ‘unable’ to enforce such laws with the assistance of those forces if it were legal for him to direct such a deployment.”

Professor Lederman wrote his brief over a weekend. “I hesitate to acknowledge that,” he said on a podcast last month, “but it’s really true that I didn’t have like some great background knowledge in this statute.”

A veteran of the Office of Legal Counsel, the elite Justice Department unit that advises the executive branch on the law, Professor Lederman identified what he called a glaring flaw in the administration’s argument. “None of the parties were paying attention to it,” he said.

But the justices were. A week after Professor Lederman filed his brief, the court ordered the parties to submit additional briefs on the issue he had spotted. They did, and almost two months passed.

In the end, the majority adopted the professor’s argument, over the dissents of the three most conservative justices. It was the Trump administration’s first major loss at the court in many months. During that time, the court granted about 20 emergency requests claiming broad presidential power in all sorts of other settings.

In most politically salient cases, the ex ante positions of the median vote of the Court and the Trump administration are aligned, so the quality of arguments from the other side are essentially moot. But there may be cases in which the preferences of the justices at the center of the Court are weaker, and in these cases the law may actually matter. As we saw toward the end of the Truman and Bush administrations, a politically weak president may also be more vulnerable to losses at a previously sympathetic Court. This may be just a one-off, or it may reflect Trump losing at least a fraction of his teflon. In every challenge, make the best argument you can and see.