Harry Litman - Moment of Truth for the High Court
Don’t look now, but we have suddenly arrived at an existential moment for the country, in the form of an emergency application from the Administration to the Supreme Court. In the coming days, the Court will either grant Trump powers that he could use—without exaggeration—to bring down constitutional rule, or it will stand up for the principle that the courts needn’t roll over in response to patently false claims from a would-be tyrant.
The justices have before them an emergency application—yes, another huge question to be decided on the shadow docket—in Trump v. Illinois. The case asks whether the president can invoke “emergency powers” to deploy troops on American soil whenever he declares that local law enforcement can’t handle a situation or that a “rebellion” exists. If the Court accepts that claim, it will have opened the door to a presidency unbound by fact, law, or judicial review—one able to fabricate crises and use them to consolidate power.
That may sound theoretical. It’s not. A ruling in Trump’s favor would give legal cover to the most dangerous play in his authoritarian playbook: declaring a manufactured emergency and using federal troops to interfere with the 2026 election—stationing them at polling places, seizing voting machines, or detaining election officials under the pretense of “protecting” the vote. Once the Court consecrates an invented emergency as a lawful one, there’s no obvious way back.
The Illinois case is one of two mirror-image cases quickly working their way up the federal courts. The other is the Portland case, in which Judge Karin Immergut, in an opinion I’ve analyzed and extolled at length, held that even applying a high standard of deference, the Administration’s claim of a “rebellion” justifying federalization of the Guard was simply “untethered to the facts.” Ditto for its assertion that normal law enforcement was “unable…to execute the laws of the United States.” Immergut explained that courts needn’t—indeed, may not—give effect to a presidential determination unless it reflects at least a “colorable assessment of the facts and law within a range of honest judgment.” Otherwise put, “a great level of deference … is not equivalent to ignoring the facts on the ground.”
https://harrylitman.substack.com/p/moment-of-truth-for-the-high-court
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