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Photo: Chip Somodevilla/Getty Images

It’s hard to keep up with, much less unravel, the many legal cases aimed at reining in Donald Trump’s assertions of virtually unlimited presidential power. But there’s one case pending at the U.S. Supreme Court right now that Georgetown University law professor Steve Vladeck calls a “make-or-break moment” for the Court. It’s an emergency petition by the Trump administration to set aside lower-court determinations that the president had failed to make an adequate factual argument that protests against ICE tactics in and around Chicago justified deployment of federalized National Guard units from Illinois and from Texas.

The most recent ruling, by a three-judge panel of the Seventh Circuit court of appeals (including one Trump and another Republican nominee), put the matter very bluntly. After reviewing the facts, the panel concluded:

Political opposition is not rebellion. A protest does not become a rebellion merely because the protestors advocate for myriad legal or policy changes, are well organized, call for significant changes to the structure of the U.S. government, use civil disobedience as a form of protest, or exercise their Second Amendment right to carry firearms as the law currently allows.

From a legal point of view, the key contention of the Seventh Circuit panel was to deny that the president has the exclusive and un-reviewable discretion to decide when circumstances warrant Guard deployments. And that’s what the administration wants the Supreme Court to overrule, making Trump the unquestionable finder of fact in situations where he wants to flex military muscle to crush opposition to his policies, as Vladeck interprets his plea to the Court for an emergency intervention:

[T]he application’s argument is, effectively, that any interference with federal law enforcement or behavior that requires diversion of federal law enforcement resources is sufficient to satisfy [legal requirements for deployment]—which would effectively allow the President to call out the National Guard in response to even 100% peaceful anti-government protests solely because even a little bit of federal manpower would have to be redirected toward them.

The Supreme Court could just decline to intervene and let the cases arising from Chicago and other cities work their way through the courts. So it would have to go out of its way to give the administration the momentous legal victory it seeks. It could use as an excuse a theoretical split between circuits, given a 2-1 decision yesterday by a three-judge panel of the Ninth Circuit court of appeals green-lighting Trump’s deployment of Guard units in Portland. That panel did not concede total presidential authority to determine the factual preconditions for such deployments, but rather agreed the administration had made a sufficient case that ICE protests were in danger of getting out of hand in that one city. So it’s not the total power over fact-finding that Team Trump craves.

The stakes involved in the Supreme Court’s handling of Trump v. Illinois could be even larger than Vladeck asserts. This particular president has shown himself to be the most unreliable finder of fact you can imagine. He routinely denies any facts — from presidential-election results and the basics of American history to climate change and crime data — that inconvenience him. If given carte blanche to sensationalize and criminalize political opposition and treat it as “rebellion,” it’s quite likely he will soon indulge himself (as he indicated he’s thinking about doing in an interview this weekend) in invoking the Insurrection Act to deploy troops everywhere he isn’t getting his way.

A saying often attributed to the late U.S. senator Daniel Patrick Moynihan holds that “everyone is entitled to his own opinion but not to his own facts.” If the Supreme Court is willing to accommodate him, the 47th president’s very peculiar facts may soon become the law of the land.

Supreme Court to Decide If Trump Is Entitled to His Own Facts

Supreme Court to Decide If Trump Is Entitled to His Own Facts