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Jennifer Elsea

@jnklz.bsky.social

5.7K followers 280 following 1.1K posts

Legislative attorney at CRS. NatSec, IHL, international law, etc. Army Intelligence officer in previous life. Opinions mine. No skeets from this account are attributable to CRS.

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Jennifer Elsea @jnklz.bsky.social · Jun 20

Apparently the 9th Circuit interprets the 10 USC § 12406 requirement that “regular forces” are unable to execute the law means federal officers. Legislative history makes clear that regular forces means the regular armed forces as opposed to the militia.

Jennifer Elsea @jnklz.bsky.social · 12m

Who knew the president could delegate decisions regarding the suspension of habeas corpus to a cabinet secretary? On the other hand, since she believes Habeas is the president’s right to deport people, maybe suspending it would be a good thing.

Jennifer Elsea @jnklz.bsky.social · 41m

NG called into federal service as the organized militia should not be considered just like any other soldier for duty purposes. The President is their Commander in Chief just the same, but their service is more limited to the constitutional purposes. The Court recognized the separate status.

∞ See Selective Draft Law Cases, 245 U. S. 366, 382-389 (1918); Cox v.
Wood, 247 U. S. 3, 6 (1918).
« Congress has by distinct statutes provided for activating the National Guard of the United States and for calling forth the militia, including the National Guards of the various States. See 10 U.S. C. §§ 672-675 (au-thorizing executive officials to order reserve forces, including the National Guard of the United States and the Air National Guard of the United States, to active duty); 10 U. S. C. §§331-333 (authorizing executive officials to call forth the militia of the States); 10 U. S. C. §§ 3500, 8500 (au-thorizing executive officials to call forth the National Guards of the various States). When the National Guard units of the States are called forth, the orders "shall be issued through the governors of the States." § 3500.

Jennifer Elsea @jnklz.bsky.social · 41m

The government again conflates the status of the National Guard of the United States with the National Guard as the organized militia. NGUS is a reserve component of the armed forces. Perpich was about members *ordered* (not called) into active service of the NGUS.

the federalized troops could be deployed.
This makes sense because the deployment decision is firmly committed to the President's
discretion. As explained above, the National Guard is composed of both the State National Guard,
under the command of the several States, and the National Guard of the United States, a federal entity
under the federal chain of command, see 10 U.S.C. § 10101. Once called into federal service, "members
of the National Guard... lose their status as members of the state militia during their period of active
duty," Perpich, 496 U.S. at 347, and become federal soldiers, who serve under the President as Commander in Chief, see U.S. Const. art. II, § 2, cl. 1. It is in that status—i.e, as federal soldiers— that the Texas National Guard members are being deployed to Illinois. On that issue, the statute imposes no geographic limitation. If anything, the statute merely confers broad discretion on the President, authorizing him to call up the Guardsmen in "such numbers as he considers necessary." 10 U.S.C.
§ 12406.

Jennifer Elsea @jnklz.bsky.social · 2h

Governors were not happy. After about a year of intense pressure from the states, Congress repealed the amendment, returning the IA (§ 253) to its original language.

Jennifer Elsea @jnklz.bsky.social · 2h

Fun fact: Insurrection Edition.
After Hurricane Katrina, when the La governor refused to request invocation of the Insurrection Act in NOLA, Congress amended the IA to permit the president to override the governor in such situations.

SEC. 1076. USE OF THE ARMED FORCES IN MAJOR PUBLIC EMER
GENCIES.
(a) USE OF THE ARMED FORCES AUTHORIZED.—
(1) IN GENERAL.—Section 333 of title 10, United States
Code, is amended to read as follows:
"$333. Major public emergencies; interference with State and
Federal law
"(a) USE OF ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.-
(1) The President may employ the armed forces, including the National Guard in Federal service, to-
"(A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the Inited States, the President determines that
"(i) domestic violence has occurred to such an extent
that the constituted authorities of the State of possession are incapable of maintaining public order; and
"ii) such violence results in a condition described in
paragraph (2): or
(B) suppress, in a State,
any insurrection, domestic
violence, unlawful combination, or conspiracy if such insurrec-tion, violation, combination, or conspiracy results in a condition

described in paragraph (2).
"(2) A condition described in this paragraph is a condition
that—
"(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that state or possession, that any part or class of its people is deprived of a night, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fall, or refuse o protect that right, privilege, or immunity, or to give that protection; or

PUBLIC LAW 109-364-OCT. 17, 2006
"(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
"(3) In any situation covered by paragraph (1)(B), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.
"(b) NOTICE TO CONGRESS.-The President shall notify Congress of the determination to exercise the authority in subsection (a)(1)(A) as soon as practicable after the determination and every 14 days thereafter during the duration of the exercise of that authority."
(2) PROCLAMATION TO DISPERSE. Section 334 of such title is amended by inserting "or those obstructing the enforcement of the laws" after "insurgents"
(3) HEADING AMENDMENT.-The heading of chapter 15 of such title is amended to read as follows:
"CHAPTER 15-ENFORCEMENT OF THE LAWS TO RESTORE PUBLIC ORDER".
120 STAT

Jennifer Elsea @jnklz.bsky.social · 15h

Even in the earlier cases upholding the president’s complete discretion the court looked at the facts on the ground. So this may be a test of the limits of judicial deference.

Jennifer Elsea @jnklz.bsky.social · 15h

I doubt § 252 would be held unconstitutional, but maybe limited?

Jennifer Elsea @jnklz.bsky.social · 15h

Seems pretty hard to argue with.

Jennifer Elsea @jnklz.bsky.social · 15h

True. The courts have not challenged the emergence declaration itself, but have overturned actions taken pursuant to the emergency.

Jennifer Elsea @jnklz.bsky.social · 15h

Entirely possible.

Jennifer Elsea @jnklz.bsky.social · 15h

The purpose of it was to prioritize the use of regular military, which had become practice anyway, prior to federalizing the Guard. Since the regular military forces still exist, no reason to just read the phrase out of it. IMHO

Jennifer Elsea @jnklz.bsky.social · 15h

which seems similar to me. I could be wrong. § 12406 started out in the same 1795 act that forms the IA, so I’d think they would be treated fairly similarly.

Jennifer Elsea @jnklz.bsky.social · 15h

Arguably, it’s up to the prez to determine whether an obstruction makes ordinary law enforcement impossible, but I think a court might at least balk when the obstruction is made up of whole cloth. The 9th Circuit applied the Martin v Mott already to the CA case to determine the “unable” part,

Jennifer Elsea @jnklz.bsky.social · 15h

True. Also, “unable with the regular forces” was originally meant to prioritize the use of the regular *military* forces, not just whoever regularly enforces federal law (which, when that bit was added, was basically the US marshal.)

Jennifer Elsea @jnklz.bsky.social · 16h

What SCOTUS would do is anybody’s guess, but there is precedent for reviewing actions taken to address like exigencies, even if they decline to review invocation of the IA itself.

Jennifer Elsea @jnklz.bsky.social · 16h

The 9th Circuit wouldn’t give more deference to the IA than in the CA case, in which it held courts do have power to review the circumstances. The prez’ statements that the purpose is to reduce crime could be turned against the gov because the IA & § 12406 permit execution of federal law only.

Jennifer Elsea @jnklz.bsky.social · 22h

For those not aware, the Smith Mundt Act prevented broadcasting within the United States of U.S. government informational material meant for overseas consumption.

Jennifer Elsea @jnklz.bsky.social · 22h

Standard appropriations rider seems plausibly applicable. Example 👇

bsky.app/profile/jnkl...

Jennifer Elsea @jnklz.bsky.social · Feb 22

Long-standing appropriations rider prohibits propaganda and partisan publicity campaigns by agencies. If this is that, there’s a potential Anti-Deficiency Act implication. (Example; I don’t know if this one applies to DHS funds.)

PUBLIC LAW 118-42-MAR. 9, 2024
138 STAT. 167
TITLE V
GENERAL PROVISIONS
(INCLUDING TRANSFERS AND RESCISSIONS OF FUNDS)
SEc. 501. No part of any appropriation contained in this Act shall be used for publicity or propaganda purposes not authorized by the Congress.

Jennifer Elsea @jnklz.bsky.social · 1d

Wordle 1,572 4/6

⬜⬜⬜⬜🟩
⬜⬜⬜⬜🟩
⬜⬜⬜🟨🟩
🟩🟩🟩🟩🟩

Jennifer Elsea @jnklz.bsky.social · 1d

The oval is being infestooned™️

Jennifer Elsea @jnklz.bsky.social · 1d

I can’t wait to see this argument when it shows up in court. I’m guessing they’ll try to argue that governors are obstructing the law. But how?

Jennifer Elsea @jnklz.bsky.social · 1d

There are statutory requirements to inform Congress about new legal interpretations of authorized use of force, but I think they apply only to the AUMFs or to defense of partner forces.

Jennifer Elsea @jnklz.bsky.social · 1d

New legal analysis of a statute? Where do those come from?

Jennifer Elsea @jnklz.bsky.social · 1d

Interesting thing (maybe) in the gov appeal:

bsky.app/profile/jnkl...

Jennifer Elsea @jnklz.bsky.social · 2d

The government appears to conflate the National Guard of the United States (a reserve component) with the National Guard as the organized militia.

STATEMENT
A.
Legal Background
1. The Constitution authorizes Congress to raise and support a national Army and to organize "the Militia." See U.S. Const. art. I, § 8, cl. 15. Exercising that
authority, Congress has "created the National Guard of the United States, a federal organization comprised of state national guard units and their members." Perpich v. Department of Def., 496 U.S. 334, 338 (1990) (quotation marks omitted). The National
Guard is composed of both the State National Guard, under the command of the
several States, and the National Guard of the United States, a federal entity under the
federal chain of command, see 10 U.S.C. § 10101. Once called into federal service,
"members of the National Guard... lose their status as members of the state militia during their period of active duty," Perpich, 496 U.S. at 347, become federal soldiers,

Jennifer Elsea @jnklz.bsky.social · 1d

Yes.
bsky.app/profile/jnkl...

Jennifer Elsea @jnklz.bsky.social · 2d

The only difference between the Insurrection Act and 10 USC § 12406 is that regular military can be deployed. Well, that and the latter applies to invasions, and the former requires a proclamation to disperse and a finding (in essence) that law enforcement is overwhelmed.