The briefing in the emergency docket case on the deployment of the National Guard to Chicago is still ongoing, but I did want to highlight one point. Here is what Justice Jackson said in his concurrence:
“We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence.”
The Administration has not (at least formally) said that a rebellion is going on in Chicago, probably because that statement would be absurd on its face. As a result, no deference is warranted to the President’s determination here.
The counterpoint is that Martin v. Mott says that deference is owed, but this is an unsound reading of the case. First, that case arose in the context of a declared war (the War of 1812). A war declaration is a broad delegation to the President by Congress. If the Korean War had been declared, Youngstown may well have come out the other way. Second, Martin said that a militia member could not gainsay the President’s determination about a deployment. It was a military discipline case stemming from a court martial. This does not speak to a Governor or a city objecting to a deployment. That’s a civil policy question.