Why Stop at Level Three?

discretion to pose the question in Trump v. Illinois and elsewhere

On Monday’s podcast discussion of Trump v. Illinois, the national guard case, I made a point that I wanted to extract into a post here. One of the things really driven home by the fights about “party presentation” in Trump v. Illinois, and by what the majority chooses to resolve and chooses not to resolve, is how many different levels of analysis the Court can choose between.

• Level One: Was the Seventh Circuit wrong not to credit the President’s determination that he could not enforce the laws using regular law enforcement?

• Level Two: What is “regular forces”? Does the term “regular forces” require the President to instead make a determination about being unable to use the regular military enforces to enforce the law?

• Level Three: What is “unable”? If the President is legally prohibited from using the military, does that trigger the militia statute?

• Level Four: What about the Insurrection Act? Does the Insurrection Act allow the President to deploy the armed forces or the militia in these circumstances?

• Level Five: What about Article II? Do some of the above statutory restrictions violate the Constitution?

• Level Six: ??? How deep does the rabbit hole go?

The parties initially argued the case at Level One. The Court used its discretion to order further briefing and then go down to Level Two and resolve the “regular forces” question and then go down to Level Three and resolve the “unable” question. At that point they could have gone down to Level Four and Level Five, but they decided not to because they were insufficiently argued. But of course, that would also have been a reason to stop at level one initially!

And then notice that some of the disagreements among the other Justices are really about what level to go to. Justice Kavanaugh agrees with the majority that they should go from Level One to Level Two, and agrees about the answer to Level Two, but he would stop there rather than go to Level Three. Justice Gorsuch doesn’t necessarily disagree with the majority about the answers to Level Two or Level Three, but he notices how many more levels there are and then decides that’s a reason to stop back at Level One.

So for Justice Gorsuch, the application should be granted because he would stop at Level One, while for Justice Kavanaugh the application should be denied because he would stop at Level Two, and for the majority the application should be denied because they would stop at Level Three.

The answer to the question at any particular level may be law-governed and non-discretionary. But the choice of what level to go to, and thus the choice of what question to ask, is discretionary.

Discretion may be an inherent feature of the Court’s docket today, and especially so of the interim-relief docket. Indeed, once you look for it, this discretion about what questions to ask is ubiquitous. Why does Dobbs reconsider de novo the validity of Roe, but take as given the validity of Geduldig? Why did Nebraska v. Biden convert an application to vacate a universal injunction into a petition for cert. before judgment? And so on.

The national guard case really drives home the importance of discretion in how deep to go into the materials. At a minimum, this means that we should pay attention to how the Justices decide what level to go to. You could imagine a standard of strict party presentation — go to whatever level the parties choose. You could imagine a standard driven by legal clarity — go to whatever level seems easiest to resolve. You could imagine a standard driven by outcomes — figure out which side you want to win, then pick the level that makes that side win.

But it’s hard to evaluate the Court’s answers without thinking about how they decide what questions to ask.