the wrong font

Part of the fun (?) of reading legal rhetoric is the endless parsing of language, what Mark Twain called the “infinitely divided star-dust.”

The first post in this series looked at the Trump DOJ’s pettifogging over “facilitate.” The second looked at “invasion,” and whether or not the DOJ can unilaterally (re)define what a word means in contradiction to what a Federal judge described as its “plain, ordinary meaning.” Now, another argument revolves around the meaning of the (seemingly) innocuous, everyday word, “through.”

On June 12, U.S. District Judge Charles R. Breyer issued a ruling on the legitimacy of Donald Trump’s takeover of the California National Guard. Part of the ruling focused on the Militia Act of 1903. Section 12406 of that Act includes the following text [emphasis added]:

[T]he President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia.

According to Breyer,

Defendants assert that they complied with § 12406 because written at the top of the June 7 and June 9 DOD Orders was the label “THROUGH: THE GOVERNOR OF CALIFORNIA…True enough. But an interpretation of § 12406 that permits the President to federalize a state’s National Guard by typing the phrase “Through the Governor of [insert state here]” at the top of a document that the President never sends to the governor strains credibility, especially given that Congress specifically amended the statute to add the requirement that orders “shall be issued through the governors.”

Breyer ultimately ruled against the Trump DOJ, concluding, “At this early stage of the proceedings, the Court must determine whether the President followed the congressionally mandated procedure for his actions. He did not. His actions were illegal—both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution.” And he ordered the Guard to be returned to Newsom’s control.

So far, so good.

But then, just hours later, a 3-judge panel blocked Breyer’s order. According to a Politico article titled, “Appeals court seems poised to side with Trump on National Guard deployment in LA,”

Bennett and Miller…seemed dubious about Newsom’s argument that federal law required Trump to consult the governor or at least inform him directly about the decision to federalize the troops normally under state control.

Bennett noted that the federal law Trump invoked requires orders activating the National Guard to be issued “through the governor,” but the judge suggested that was different than demanding that the president engage in a back-and-forth with the state’s top official.

“Where does the statute say that issuing it through the governor requires either the governor’s consent or requires consultation with the government?” Bennett asked.

Now, I would argue that the statute’s authors didn’t include that specific language because they felt it was perfectly obvious what was meant by “through” in that context, and that they didn’t find it necessary to “divide the star-dust.”

But let’s start dividing.

What does the preposition, “through,” mean, exactly? Well, according to my old standby, The Online Etymological Dictionary, it means:

“from one side or end to the other; from the beginning to the end; to the ultimate,” a Middle English metathesis of thurgh, from Old English þurh, from Proto-Germanic *thurx (source also of Old Saxon thuru, Old Frisian thruch, Middle Dutch dore, Dutch door, Old High German thuruh, German durch, Gothic þairh “through“). According to Watkins, this is from PIE root *tere- (2) “to cross over, pass through, overcome.”

So “through” can be used in a couple of ways. One of them is “through the use of,” otherwise known as “to utilize”–“peace through strength,” “through the grace of God.” In that sense, it connotes origin.

The other is physical and connotes a certain level of superiority or domination over an obstacle, like Henry V’s troops through the walls of Harfleur—”Once more unto the breach, dear friends, once more; / Or close the wall up with our English dead”—or Holdo’s Sacrifice in The Last Jedi.

It’s hard to believe that the drafters of Section 12406 had that particular meaning in mind. (Although I suspect that the President did when he issued the order.) To quote judge Breyer, it “strains credibility.” It’s far more likely that the phrase “through the governor” means exactly the opposite: to include governors in the process, not to pass “through” them, and that the phrase was added in the form of a compromise between the federal governments and states’ rights.