Note to @motherjones.com: the Massie-Khanna resolution is a concurrent resolution under the WPR, which is not subject to veto. If it were to pass, the Administration would likely ignore it as unconstitutional under Chadha, setting up a court battle, but no need for veto override.

😳

Last night on @ms.now during a segment on the potential stationing of ice at the polls, @weissmann.substack.com mentioned injunctions but lamented that courts don’t have armies. Maybe they do…the magistrate can summon the land and naval forces, or the militia in aid of enforcing §592. 🤔 42 USC §1989

Well, well, well! Look who came in from the cold!

Wouldn’t he have to have been elected speaker first? I don’t think that position is held over into the next Congress.

Re reports that MoC have been denied access to ICE detention facilities because DHS argues the funding restriction doesn’t apply. It’s true that §527 of the appropriation bill applies to funds from that bill and not the 1BBB funds. But, Congress’s oversight authority does not depend on funding 1/

Anybody remember how a year ago agencies were directed to bring the cost of living down? How’s that working out?

So now Venezuela is going to “turn over” sanctioned oil to the United States, which means the President gets to decide what to do with the proceeds? Does forfeiture law no longer apply? Perhaps DOJ is reaching a court settlement in the forfeiture case to repurpose proceeds (some precedent exists).

I’m afraid DC has less of a chance at losing the Guard presence, since different laws are at issue. But the NG should be relieved §12406 has been effectively reined in.

Well. Maybe “regular forces” aren’t necessary to execute federal law after all. But if “crime” goes up, then

Here’s a 2-part guide to letters of marque (not how to apply for one, but their role in history, etc.)

A cmt on the SCOTUS order re deployment of the National Guard: Some have wondered whether it would have invalidated the use of NG to prevent opposition to desegregation in the 50’s and 60’s. Probably not, since the Insurrection Act was invoked. But one use of the precursor to §12406 seems sus 1/x

So, if the President invokes the Insurrection Act in, say Chicago, can he cut off trade and seize everybody’s stuff? The rest of the insurrection statutes, which remain in title 50 after the IA was reclassified to title 10, suggest such powers are arguably available. To wit, 50 USC § 205 🧵

Here’s a primer on how force is authorized, nominally anyway, or restricted. 👇

If you’re interested in a quick introduction to congressional war powers, here’s one that might do. 👇

Here’s a primer in presidential war powers, in case the need for one arises

To complete your holiday, I guess

Here’s a take on how t can potentially use the Insurrection Act or assert federal protective power to use regular troops to help enforce immigration law. It continues to treat §12406 as something less severe than the Insurrection Act. I think the Court’s holding demonstrates this is not true.

Hey 👀 “regular forces” is, you know, regular forces! Military ones! More to the point, §12406 does not expand authority to call the NG into federal service to “execute the law”in situations where using regular troops wouldn’t be permitted, so, unless the Insurrection Act is appropriately invoked

For posterity/future nostalgia

More on Venezuela from a fabulous colleague

A history of U.S. sanctions against Venezuela, should anyone want one.

New filing in Illinois case challenging the National Guard deployment. Prof. Lederman located the full JAG op. from 1917 interpreting the requirement the President be “unable with the regular forces to execute the law.” (I had also been looking for this opinion from the digested ops. Thanks, Marty!)

Saddest trombone sound ever Wordle 1,639 X/6 ⬜⬜🟩🟨🟨 ⬜⬜🟩🟩🟩 ⬜⬜🟩🟩🟩 ⬜⬜🟩🟩🟩 ⬜⬜🟩🟩🟩 ⬜🟨🟩🟩🟩

Oh

The Congressional Research Service (CRS) prepared this "Legal Sidebar" with sources and content of the law of war, AKA the law of armed conflict or international humanitarian law as it pertains to war crimes occurring in international armed conflicts. CRS is nonpartisan and widely respected.

In case anyone is interested in a primer on war crimes…and no, this is not a how-to

Are they going to argue the requirement for a “declared war” has evolved since enactment of the AEA so it now means the president can just declare there is one? 🤔

Dear Santa, I was, no doubt, referring to the 1903 Dick Act. Whatever I asked to be damned surely deserved it. Also, I was just calling balls and strikes.

Quick, @profanity.accountant, I need something to show Santa to prove how nice I’ve been.

What! No one else says this?

The decision finding the DC NG deployment likely unlawful, if it holds, appears to put meaningful restrictions on the use of the Guard in Title 32 status performing “other duties” as part of a federal mission or operation. Opinion is here ecf.dcd.uscourts.gov/cgi-bin/show...

Some thoughts on Illinois’ brief in the NG case, in which SCOTUS asked for briefing on the term “regular forces” in 10 USC §12406. Illinois has come to the view that regular forces are the standing military and not, as the gov’t argues, whatever civilian feds regularly execute the law. 1/

Some thoughts on the gov’t brief in the Illinois National Guard case: the reply emphasizes the requirement “unable with the regular forces” applies only to executing the laws, and not to repelling invasions or suppressing rebellions. The reply argues it makes no sense unless regular forces means 1/

Gov’t brief in Illinois NG case explains why “regular forces” in the context of §12406 is not a reference to standard military usage of a term of art, but instead means whoever regularly executes the law. One might object that the term could have been omitted without changing the meaning, but—>

In its brief filed in the Oregon case challenging deployment of the Guard, the government argues that Nixon’s use of the precursor to 10 USC §12406 to task the NG with postal operations “without even referencing the standing military.” This seems to assume Nixon’s EO reference to “regular forces”—>

I think it’s misreading the SCOTUS 14th Amendment §3 case to suggest Congress can just vote to disqualify a specific mayoral candidate. Rather, it seems to say Congress would have to enact a statute prescribing procedures for determining who is disqualified for aiding enemies of the Constitution.

OMG SCOTUS interested in the meaning of “regular forces”!

Wait a damn minute. I have it on good authority this is a word.

Fun Fact: Definition of rebellion in 10 USC § 12406 for deploying NG. The term rebellion in the Dick Act was a holdover from R.S. § 1642 (which § 4 replaced). Which originated from § 1 of the Act of 1795, which did not mention rebellion. The term appeared when the R.S. were enacted in 1864 —>

Amicus alert re “regular forces” within the meaning of 10 U.S.C. § 12406 and National Guard deployments!

Is it possible to turn off AI assistance for searches and just get sites that, y’know, contain the search terms you enter, without commenting that you must be a total idiot for entering them? I long for Back Then.

Good time to remember the October 21, 1967 March on the Pentagon, organized by the Mobe to protest the war. NYT published an oral history on the 50th anniversary (doesn’t appear that the Mobe paid participants tho). www.nytimes.com/interactive/...

Fun fact: Insurrection Act. The Act of Feb. 28, 1795 was the first permanent provision permitting the president to call forth the militia. By 1873, when all statutes in force were codified into the Revised Statutes, section one was split up:

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.

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

This Senate Judiciary hearing scheduled for Tuesday looks interesting. www.judiciary.senate.gov/committee-ac...

‘Bout time Wordle 1,535 2/6 ⬜🟨⬜🟨⬜ 🟩🟩🟩🟩🟩 Also, today’s Connections looks like which groups of four walk into a bar

Wordle 1,527 4/6 So close to nailing it ⬜⬜🟩🟩🟩 🟩⬜🟩🟩🟩 🟩⬜🟩🟩🟩 🟩🟩🟩🟩🟩

I think a short 🧵on the National Guard and its constitutional status is in order. The NG is ordinarily the state or territorial militia, subject to state authority but also subject to Congress’s authority to provide for “organizing, arming, and disciplining” them. Art I, § 8 cl. 16.