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 de

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