LEILA FADEL, HOST:
For more on the Supreme Court ruling against President Trump's efforts to deploy the National Guard in Chicago, we have Amy Howe on the line. She is the co-founder of SCOTUSblog. Good morning, Amy, and welcome back to the program.
AMY HOWE: Good morning. Thanks for having me.
FADEL: Amy, so we've seen so many of these rulings come down in the president's favor. In this case, that's not what happened. Did that surprise you?
HOWE: Not necessarily. You know, this case came to the court. The solicitor general, the government's top lawyer in the Supreme Court, was asking the justices to rule based on one question - whether the federal courts can decide whether the president can deploy the National Guard troops at all. And after a little bit, the Supreme Court asked the litigants on both sides for additional briefing on a question raised in a friend-of-the-court brief by a Georgetown law professor named Marty Lederman, who said, you don't need to get into really the question that the SG's office has asked you to decide. The real question at the center of this case is a technical question about whether or not the term, regular forces, in the statute on which the president relied refers to the regular forces of the U.S. military. And, you know, even if the president has the power to deploy, he said, the regular U.S. military forces to execute federal laws in Illinois, he hasn't tried to do that in this case. And so that's what they asked the litigants on both sides to brief, and that suggests that they were looking at this case skeptically.
FADEL: This ruling is part of the emergency docket. It's preliminary. It's temporary. But the justices did explain their reasoning. What do the opinion and the dissents tell us about the court's thinking on presidential authority here?
HOWE: So as Kat said, this was a rare loss. The justices had given the Trump administration another loss just a couple of days earlier on another temporary ruling. And the majority opinion didn't say a lot. But I think what this majority opinion and the decision signals is that the Supreme Court is certainly willing to give the president a lot of leeway, a lot of presidential power, but there are limits in how far they're going to let the Trump administration and the president go.
FADEL: How significant is the decision? I mean, we heard Kat say this isn't a precedent-making decision. Does it then have no impact on other cases involving the deployment of U.S. troops to U.S. cities where the governor doesn't ask for help?
HOWE: The cases that the Supreme Court decides on the emergency docket are sort of a weird animal because, on the one hand, they are preliminary, as Kat said, but they will still carry significant weight.
FADEL: OK.
HOWE: And we saw that over the summer when the Supreme Court decided a case involving the termination of National Institute of Health grants. And Justice Gorsuch's decision, joined by Justice Kavanaugh, actually chastised a lower-court judge for not following an earlier decision on the court's emergency docket. He said decisions by the Supreme Court on the emergency docket may not necessarily be conclusive on the merits, but they really do carry a lot of weight going forward. So I would expect that this would really carry a lot of weight in the litigation going forward, although not necessarily in the litigation regarding troops in the District of Columbia, where I live, because those are a slightly different animal.
FADEL: Would it have impact on the administration's decision-making right now? I mean, Trump said he'd like to send National Guard troops to San Francisco and other cities. Does this ruling stop him from ordering future guard deployments in these other cities or not?
HOWE: I think it's going to make it a lot more complicated because the Supreme Court, in ruling that the Trump administration hadn't shown that it was able to send the troops, in the case of Chicago, said that the president must determine that he's unable with the U.S. military to execute U.S. laws. And there really only are going to be exceptional circumstances in which he can legally call in the military to do so, so the Supreme Court is setting a really high bar.
FADEL: When you read this ruling, was there anything larger you gleaned from it? Does it say something about the dynamics on this majority-conservative court and how they treat emergency petitions?
HOWE: I mean, one thing that was really sort of interesting, you know, both Justice Samuel Alito, who wrote a dissenting opinion, joined by Justice Clarence Thomas and then Justice Neil Gorsuch - so the court's really die-hard conservatives - were criticizing the majority opinion for deciding important issues on an expedited schedule without a lot of briefing. And, you know, it was just - there was a little bit of irony there because those are precisely what their liberal colleagues have been complaining about with the court's emergency docket for - a couple of years ago, as well as the critics of the court's emergency docket, like Professor Stephen Vladeck, who I know has appeared on your show and others many times.
FADEL: Amy Howe is co-founder of SCOTUSblog. Thank you so much for joining us.
HOWE: Thanks for having me. Transcript provided by NPR, Copyright NPR.
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