Here's that supplemental letter, to the Supremes -- and a bit:
. . .Respondents [the State of Illinois has] demonstrated that every metric typically considered in statutory interpretation cases shows that “the regular forces” means the professional military. Resp. Supp. 3-7. This includes dictionary definitions from the time section 12406(3) was enacted, contemporaneous decisions of this Court, and examples of Congress’s other usages of “regular” and “forces” in Title 10 and elsewhere in the United States Code. Id. [Trumpian / Noemite] applicants make no meaningful argument to the contrary: they address none of these sources and, in fact, concede that “‘regular forces’ may in other situations refer to the standing military.” Appl. Supp. 3. Applicants nevertheless assert that an idiosyncratic interpretation of “the regular forces” is warranted because of the term’s “function” in section 12406(3), and because that “function” purportedly is confirmed by the overall “structure of Section 12406.” Id. at 3-4. Applicants are incorrect.
. . .First, applicants argue that it would be “unnatural” to construe “the regular forces” to refer to the military because “the standing military does not regularly execute the laws” given the prohibitions in the Posse Comitatus Act. Appl. Supp. 3 (cleaned up). But interpreting “the regular forces” to mean the professional military is fully consistent with that Act. As applicants recognize, certain federal statutes, including the Insurrection Act, create exceptions to the Posse Comitatus Act and thus authorize the President to use the military to enforce federal law in limited circumstances. Id.; see also Resp. Supp. 13; Cal. & Or. Br. 6-8. To be sure, the requirements for invoking the Insurrection Act are demanding, Resp. Supp. 12-13, but this is unsurprising given the “traditional and strong resistance of Americans to any military intrusion into civilian affairs,” Laird v. Tatum, 408 U.S. 1, 15 (1972).
Regardless, the Posse Comitatus Act’s prohibition on using the military to execute federal law is not categorical, Cal. & Or. Br. 7-8, with the result that interpreting “the regular forces” consistently with the ordinary meaning of that term would not bring section 12406(3) into conflict with that Act.
By contrast, accepting applicants’ interpretation would create a conflict between section 12406(3) and section 12405. Section 12405 provides that National Guard members “called into Federal service” are “subject to the laws and regulations governing the Army [and] Air Force . . . except those applicable only to members of the Regular Army or Regular Air Force.” 10 U.S.C. § 12405. The laws governing the Army and Air Force include the Posse Comitatus Act, which applies not only to the Regular Army and Air Force but also to “any part” of those branches. 18 U.S.C. § 1385. And those branches include any federalized members of the Army and Air National Guards. 10 U.S.C. §§ 10106, 10112. In other words, notwithstanding the fact that the federalized Guard is treated as the military for purposes of the Posse Comitatus Act, applicants’ interpretation would introduce a disparity between them by allowing Guard members to execute federal law in circumstances where their fulltime counterparts would be unable.
. . .[The Trumpians / Noemites] also mention the President’s Article II authority. Appl. Supp. 3, 11. But any reliance on Article II would be misplaced because, among other reasons, the President did not rely on Article II to federalize and deploy the National Guard in Illinois, Doc. 62-1, and, in any event, the Constitution commits the power to provide for calling forth the militia to Congress, which has specified the circumstances in which the militia may be called forth into federal service. . . .
In the end, applicants’ discussion of the text reduces to a policy argument, which has no place when resolving questions of statutory interpretation. United States ex rel. Schutte v. SuperValu Inc., 598 U.S. 739, 757-758 (2023); accord SAS Inst., Inc. v. Iancu, 584 U.S. 357, 368 (2018). . . .
Now you know. And when Trump gets bounced by the Supremes. . . remember that you saw it here, predicted, first. Smile.
नमस्ते
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