The "toughest issue for them" is that none of the three predicates for invoking 12406 is satisfied here. (Do you disagree?) That said, I'm not sure it matters much, because the involvement of the militia (and thus 12406) is something of a sideshow, especially now that the Marines are there, too. The key legal question is whether any military forces are engaged in law enforcement activities, which would violate the Posse Comitatus Act. On that score, the Newsom complaint and papers are underwhelming, but the facts on the (literal) ground remain to be seen.
I'm not sure about predicates 2 and 3, or of the possible relevance of Martin v. Mott and the principles therein. Those all seem harder to me than the "through" issue. But I agree with you about the rest, and also I think the government will win on the non-merits injunction factors.
Thanks. As for (3), there's no evidence all that the President was "unable with the regular forces to execute the laws of the United States"--indeed, no "regular forces" had even been used yet, and they still haven't been directed to execute the laws (something that would require invoking the Insurrection Act)--to the contrary.
And as for (2), surely you don't buy that there's been a "rebellion" here, right?
But invoking the Insurrection Act would already allow the President to use the National Guard, so what would the point of section 12406 even be in that circumstance? It seems like prong (3) must be referring to situations in which Congress has expressly authorized use of the regular army (but, contra the Insurrection Act, not the National Guard) to enforce the laws (e.g., 16 U.S.C. § 23) but for some reason the available regular forces are inadequate. In those circumstances, the President could supplement the regular forces with National Guard troops via 12406(3).
The "toughest issue for them" is that none of the three predicates for invoking 12406 is satisfied here. (Do you disagree?) That said, I'm not sure it matters much, because the involvement of the militia (and thus 12406) is something of a sideshow, especially now that the Marines are there, too. The key legal question is whether any military forces are engaged in law enforcement activities, which would violate the Posse Comitatus Act. On that score, the Newsom complaint and papers are underwhelming, but the facts on the (literal) ground remain to be seen.
I'm not sure about predicates 2 and 3, or of the possible relevance of Martin v. Mott and the principles therein. Those all seem harder to me than the "through" issue. But I agree with you about the rest, and also I think the government will win on the non-merits injunction factors.
Thanks. As for (3), there's no evidence all that the President was "unable with the regular forces to execute the laws of the United States"--indeed, no "regular forces" had even been used yet, and they still haven't been directed to execute the laws (something that would require invoking the Insurrection Act)--to the contrary.
And as for (2), surely you don't buy that there's been a "rebellion" here, right?
I am not aware of a rebellion, but what is "danger of rebellion"?
Early April, 1861
But invoking the Insurrection Act would already allow the President to use the National Guard, so what would the point of section 12406 even be in that circumstance? It seems like prong (3) must be referring to situations in which Congress has expressly authorized use of the regular army (but, contra the Insurrection Act, not the National Guard) to enforce the laws (e.g., 16 U.S.C. § 23) but for some reason the available regular forces are inadequate. In those circumstances, the President could supplement the regular forces with National Guard troops via 12406(3).