The key precedent that the Supreme Court must grapple with in deciding whether President Trump may deploy National Guard troops in Illinois is two centuries old and arose from the seizure of a “gray mare.”
Some sources say the mare was a mule; others, a horse. Still others say it was a horse of different color — brown.
“That seminal decision squarely controls here,” D. John Sauer, the solicitor general, wrote in an emergency application filed on Friday asking the justices to let the deployment proceed after lower courts had blocked it. He cited the ruling 19 times.
State and local officials have objected to Mr. Trump’s plan to station National Guard troops outside an immigration facility in the Chicago area, arguing that federalizing the troops is an unconstitutional infringement on state power.
The Trump administration countered that courts have no power to second-guess the president’s judgment. Even if they did, the administration said, the deployment was authorized by a federal law because the protests amounted to a rebellion or made the president unable to enforce the law with regular forces.
The 19th-century precedent involves Jacob Mott, who refused to report for duty when President James Madison called up the New York militia during the War of 1812.
He was court-martialed and fined, and the authorities seized the mare to pay the debt. Mott sued to recover the animal, saying that Madison’s order federalizing the state militia was invalid under a 1795 law, a precursor to the one Mr. Trump relied on in Illinois.
Mott lost, with the Supreme Court ruling that he had no right to dispute the president’s judgment.
Now the question of just how much discretion to deploy the military in American cities the 1827 decision hands the president — and just how parallel Mott’s claims over his mare are to those made by officials in Illinois — hangs over a case that will form a critical test of the scope of presidential power.
Read in isolation, one passage in the 19th-century opinion seems to lend strong support to Mr. Trump. But legal scholars and several lower-court judges said the Trump administration was taking the words out of context.
The 1827 case, as Judge April M. Perry put it on Oct. 9 in ruling against the administration’s Chicago deployment, is “an oldie but goodie.”
The statute at issue in Mott’s case, signed into law by George Washington, said the president was authorized to call up state militias “whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe.”
Writing for a unanimous court in Martin v. Mott, Justice Joseph Story concluded that “the authority to decide whether the exigency has arisen belongs exclusively to the president, and that his decision is conclusive upon all other persons.”
Mr. Sauer has argued that the decision makes clear that the president has the exclusive power to determine whether to call up the National Guard — “not the state of Illinois or a Federal District Court.”
But in the 21st century, a unanimous panel of the U.S. Court of Appeals for the Seventh Circuit, in Chicago, wrote last week that the old decision’s “broad language must be understood in its context.”
Part of that context, the panel wrote, was history. Another part was that Mott’s challenge — as opposed to the Illinois case — was lodged by a military subordinate.
“The nation was then at war with the most powerful empire on earth,” the panel’s unsigned decision said. “That empire had actually invaded the United States and was sacking its capital city in August 1814.”
Indeed, the Seventh Circuit panel went on, the 1827 decision “expressed incredulity at the prospect that every officer under the president’s command could make his own determination whether an imminent threat of invasion existed and could refuse to obey the president’s orders.”
“Here, by contrast,” the panel said, “the question is whether courts, not subordinate militiamen, may review the president’s determination.”
The members of the panel were Judge Ilana Rovner, appointed by President George H.W. Bush; Judge David Hamilton, appointed by President Barack Obama; and Judge Amy St. Eve, appointed by Mr. Trump.
Mr. Sauer responded that the lower courts were reading the Martin decision too narrowly.
“Nothing about the rationale of this court’s decision turned on or was limited to those particular facts,” he wrote.
Some legal scholars have disputed that.
Joshua Braver, a law professor at the University of Wisconsin, and John C. Dehn, a professor at Loyola University Chicago Law School, wrote in a blog post that Justice Story was clearly referring to members of the militia, not the courts. “He framed the issue as one of military discipline — of obedience to the commander in chief,” they wrote.
In a brief filed on Monday, Kwame Raoul, the attorney general of Illinois, scoffed at the idea that Mott had much in common with the elected leaders of Illinois.
“A delinquent militiaman’s attempt to challenge his court-martial by arguing that the British Empire’s invasion during the War of 1812 was an insufficient exigency to federalize the militia,” he wrote, is quite different from “a sovereign state’s challenge to an imminent domestic deployment within its borders over its governor’s objection.”
The current law, which was largely adopted in 1903 and 1908, offers three scenarios in which the president may federalize and deploy National Guard troops. Everyone involved agrees that the first, concerning foreign invasions, does not apply to the events in Illinois. Mr. Trump relies on the other two.
One allows the president to deploy the National Guard when there is a rebellion or a danger of rebellion. The other allows him to do so if he is unable to execute the laws of the United States “with regular forces.”
The two sides have provided the courts with sharply differing accounts of the facts on the ground about protests in Broadview, a Chicago suburb that is home to an Immigration and Customs Enforcement facility, and whether they amount to a possible rebellion or circumstances that cannot be handled in the usual ways.
To hear the administration tell it, federal officers have been “threatened and assaulted, attacked in a harrowing preplanned ambush involving many assailants, rammed in their government vehicles, shot at with fireworks and other improvised weapons, injured and hospitalized, and threatened in person and online — including by a $10,000 bounty for the murder of a senior federal official.”
Officials in Illinois painted a different picture. In recent weeks, they told the justices, demonstrations outside the facility have “generally featured fewer than 50 people and have largely remained peaceful.”
“Though some protesters have tried to stand or sit in the facility’s driveway,” the officials wrote, “ICE personnel have removed them, enabling vehicles to enter and exit the facility.”
Judge Perry, an appointee of President Joseph R. Biden Jr., evaluated the competing sworn statements and found that all three of the ones submitted by federal officials with firsthand knowledge of events in Illinois contained “unreliable information.”
“There has been,” she said, “a great deal of protest activity, some civil disobedience, some attacks on federal agents and some federal property damage.” But that did not amount to, she wrote, “a danger of rebellion.”
The appeals court panel echoed that assessment.
“Political opposition is not rebellion,” the panel wrote. “A protest does not become a rebellion merely because the protesters advocate for myriad legal or policy changes, are well organized, call for significant changes to the structure of the U.S. government, use civil disobedience as a form of protest or exercise their Second Amendment right to carry firearms as the law currently allows.”
As to the second provision, Judge Perry said that being “unable to execute the laws” meant that the government was entirely incapable of doing so and concluded that “there has been no showing that the civil power has failed.”
The U.S. Court of Appeals for the Ninth Circuit in June and again on Monday adopted a broader understanding of the provision, finding that it applied when law enforcement was “significantly impeded.”
On Monday, a divided three-judge panel allowed deployment of troops in Portland, Ore. But the majority said that developments there appeared to be different from the ones in Illinois, accepting the Seventh Circuit’s view that the federal government appeared capable of protecting personnel and property in Chicago without the National Guard. The Portland protests, they found, have been more violent, justifying the deployment.
Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.
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