What happens if the president believes the streets are on fire and the National Guard must roll out – but a federal judge disagrees? What if reality itself disagrees with the commander-in-chief? Who wins out?

These questions ultimately will determine the legality of Donald Trump’s deployment of National Guard (and potentially other military assets) in California, Oregon, Illinois, and likely beyond. It’s not so much about whether Trump is correct in his assessment of danger. It’s about who gets to decide.

The law Trump has cited to activate National Guard troops is not the Insurrection Act – though he has openly contemplated it – but rather an emergency statute titled Section 12406. (Not every statute gets a memorably ominous moniker.) That law permits the president to deploy the Guard, even over the objection of a state governor, in cases of rebellion or foreign invasion, or when “the President is unable with the regular forces to execute the laws of the United States.” 

If you’re wondering what exactly that third, catch-all category actually means, then you’ve already spotted the key issue. Can the president send in the troops if, for example, the feds could use a few more people to help make drug arrests – which would essentially always be the case? Or would the law require a cataclysmic emergency like a natural disaster or a city-consuming riot? The line probably falls somewhere between those two extremes – but where? 

Trump’s lawyers have identified this ambiguity and exploited it, to mixed success thus far in the courts. When the President deployed the National Guard in California during anti-ICE protests in June, he lost the first round when a federal district court decided Trump was simply wrong, and no such emergency conditions existed. But the (decidedly liberal) Ninth Circuit Court of Appeals reversed that ruling – not so much because Trump was right, but rather because, as president, his determination about the necessity of activating the National Guard was due “a highly deferential standard of review.” The court of appeals found some evidence – not a lot, but enough – that federal property and personnel had been attacked. The Ninth Circuit rejected Trump’s argument that his decision to deploy the National Guard was entirely unreviewable by the courts. But, the court of appeals found, it’s not up to us as judges to overrule the president merely if we disagree with him; we can do that only if he’s patently wrong. 

This week, a Trump-appointed federal judge, Karin Immergut, blocked Trump’s activation of the National Guard in Oregon – notwithstanding the President’s hyperbolic public assertion that “Portland is burning to the ground.” When Trump tried a sneaky end-run hours later by sending National Guard troops from another state to Oregon, the judge smacked that down too. (Predictably, Trump lashed out at his own nominee who, he proclaimed, “ought to be ashamed of herself.”) Judge Immergut adopted the Ninth Circuit’s “highly deferential” standard – giving the president plenty of leeway, but not complete autonomy – and concluded that his determination that National Guard troops were necessary to enforce federal law in Oregon was vastly overstated. But on Thursday, the Ninth Circuit heard the Trump administration’s appeal and reportedly appeared disinclined to block the President’s deployment. 

Late Thursday, a federal judge in Illinois temporarily blocked Trump’s move to activate National Guard troops in the Chicago area. That case surely is headed up to the federal appeals court in short order; expect Trump to argue that it’s his decision, not the court’s, whether emergency conditions necessitate National Guard deployment.  

Eventually one or more of these cases will reach the Supreme Court. That could happen within weeks, given the dizzying pace of the Court’s emergency docket, through which it issues temporary orders that often effectively decide the issue permanently. 

When a case gets there, there’s no way this Supreme Court adopts a rule that allows federal judges to overturn the president merely if they disagree; it’s a certainty the Court will give the president some level of deference. So we’re looking at two realistic outcomes. First, the Supreme Court might find that the “highly deferential” standard is the right one. In that instance, we’ll have an ongoing nationwide game of legal whack–a-mole: the President activates the National Guard in a given state; that state files a lawsuit challenging the deployment in the local federal district court; and then the case makes its way through the appeals courts, potentially right back to the Supreme Court itself. Now multiply that by however many states Trump singles out, and factor in the possibility of  different results in different states. Witness, for example, California, where Trump was allowed to send in the troops, versus Oregon and Illinois, where he has been blocked (for now). It’ll create chaos in the courts and on the ground. 

That brings us to the second potential outcome: the Supreme Court might rule that the federal courts have no role whatsoever in reviewing the President’s activation of the National Guard under Section 12406. Whatever the president says, goes. It sounds drastic, but it’s in play. 

Consider that in the context of the Insurrection Act, the Court ruled (in 1827) that “the authority to decide whether the exigency has arisen belongs exclusively to the President, and . . . his decision is conclusive upon all other persons.” More recent decisions have chipped away at the margins of this holding, but the fact remains, nearly two hundred years later, that the President has complete or near-complete authority to invoke the Insurrection Act – which is similar, though not identical, to Section 12406, the law at play here. 

Of course, this current Supreme Court has defined itself largely by its expansive view of executive power. The Court already has granted the president shockingly broad criminal immunity. The justices have allowed the President to fire federal officials notwithstanding Congressional statutes that purport to limit that power, and to disregard bureaucratic requirements imposed on the president by Executive Branch bureaucracy. And the current Court has empowered the president to unilaterally withhold billions of dollars in federal funding that had already been allocated by Congress.

Consider, finally, the practicalities. If the Supreme Court gives judges any power to review the president’s deployment of the National Guard – even under some broadly deferential standard – then we’ll wind up with a cascading series of legal disputes playing out in federal courts across the country, with uncertain and potentially inconsistent outcomes. But if the Supreme Court rules that emergency deployments of the National Guard are entirely up to the president, and unreviewable by the courts, then its game over. No more lawsuits, no more confusion, no more emergency applications to the Court itself. 

I don’t buy that this Supreme Court is in the bag for Trump, or that the conservative justices are enamored with him as a president or as a human being. I do believe that this Court majority has been raised on expansive views of executive authority, and will seek out opportunities to make Federalist Society-inspired think pieces into actual law. You’ll never go broke betting on the justices to take a definitive off-ramp and put an end to a pesky, lingering litigation conundrum – especially if that outcome happens to bolster presidential power.