In major loss for Trump, Supreme Court blocks National Guard deployment to Chicago

By John Fritze, CNN

(CNN) — The Supreme Court on Tuesday rejected President Donald Trump’s request to allow him to deploy the National Guard to Chicago to protect ICE agents, a significant and rare loss for the administration on the conservative court’s emergency docket.

“At this preliminary stage, the government has failed to identify a source of authority that would allow the military to execute the laws in Illinois,” the court said in its unsigned order.

The decision, which came over dissents from conservative Justices Samuel Alito, Clarence Thomas and Neil Gorsuch, was a substantial setback and appeared almost certain to jeopardize deployments of the National Guard in other cities as well.

In a statement Tuesday, a White House spokeswoman said the ruling will not stop Trump’s efforts to enforce immigration laws, protect federal personnel and “safeguard the American public.”

“He activated the National Guard to protect federal law enforcement officers, and to ensure rioters did not destroy federal buildings and property,” White House spokeswoman Abigail Jackson told CNN. “Nothing in today’s ruling detracts from that core agenda.”

“This is a significant repudiation of President Trump’s efforts to use federal troops to supplement immigration enforcement especially in Democratic-led jurisdictions,” said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center. “It’s hard to see how the administration can continue to use this obscure 1908 authority to try to deploy federalized National Guard troops.”

Vladeck described the decision as “by far the most significant defeat the Supreme Court has handed Trump all year.”

Federal law allows a president to federalize the National Guard when he can no longer execute the laws of the United States with “regular forces.” A debate cropped up during the case about whether that term, “regular forces,” meant the regular military or federal agents, such as those who work for Immigration and Customs Enforcement.

In its order, the court said that the term “likely” refers to the standing military. Further, the court said the ability to federalize the guard under the law Trump attempted to invoke “likely applies only where the military could legally execute the laws.” In other words, the court suggested, it does not apply to protecting agents enforcing immigration laws.

“Thus, at least in this posture, the government has not carried its burden to show that” the law at issue in the case, “permits the president to federalize the guard in the exercise of inherent authority to protect federal personnel and property in Illinois,” the court said.

The decision leaves Trump with few options if he wants to continue to deploy soldiers into cities — but not zero options. It appears likely that the president could still invoke the Insurrection Act, for instance, to deploy regular forces to Chicago and other cities. That may be a politically fraught move, however, because it challenges the longstanding prohibition on the military being used for law enforcement.

Justice Brett Kavanaugh, a conservative who sided with the court’s underlying decision, said he would have done so on more narrow grounds. He agreed that the term regular forces means the US military.

“The court’s legal interpretation, as I understand it, could lead to potentially significant implications for future crises that we cannot now foresee,” Kavanaugh said.

But he said the court’s decision appeared to bind the court’s hands in potentially unforeseen ways. What if, Kavanaugh hypothesized, an angry crowd gathered outside a federal court house threatening to storm the building. If regular military forces could not deploy in time, the decision appears to bar the president from federalizing the National Guard to deal with that situation, Kavanaugh said.

“Nearly 250 years ago, the framers of our nation’s Constitution carefully divided responsibility over the country’s militia, today’s U.S. National Guard, between the federal government and the states – believing it impossible that a president would use one state’s militia against another state,” said Illinois Attorney General Kwame Raoul, a Democrat. “The extremely limited circumstances under which the federal government can call up the militia over a state’s objection do not exist in Illinois, and I am pleased that the streets of Illinois will remain free of armed National Guard members as our litigation continues in the courts.”

Alito, joined by Thomas, wrote that he “strongly” disagreed with the way the court dealt with the case.

“The court fails to explain why the president’s inherent constitutional authority to protect federal officers and property is not sufficient to justify the use of National Guard members in the relevant area for precisely that purpose,” Alito wrote. “I am not prepared at this point to express a definite view on these questions, but I have serious doubts about the correctness of the court’s views.”

Alito argued that his colleagues had “no basis for rejecting the president’s determination that he was unable to execute the federal immigration laws using the civilian law enforcement resources at his command.”

“Whatever one may think about the current administration’s enforcement of the immigration laws or the way ICE has conducted its operations, the protection of federal officers from potentially lethal attacks should not be thwarted,” Alito wrote.

The court’s decision, which landed two months after the Trump administration filed its emergency appeal, came as tensions on the ground at an ICE facility west of Chicago appeared to have eased. The administration told a federal court in a different case weeks ago that “increased coordination” with local police had “reduced the need for federal officers” to engage with protesters at the building in suburban Broadview.

And defense officials announced in November that they were “rightsizing” planned deployments to Chicago, Los Angeles and Portland. The officials said at that time that only about 300 National Guard units from Illinois would remain ready to deploy. Lower court orders have blocked their ability to conduct operations with the Department of Homeland Security.

The court took an unusually long time to resolve the emergency dispute, which the Trump administration first brought to the court in mid-October. Given the unusual amount of back and forth between the justices in Tuesday’s order, it appears likely the court’s conservative majority wrestled with how to resolve the case.

Though the situation on the ground in Chicago quieted, the administration argued in court papers in November that the deployments were still needed.

While the case has been pending, the Justice Department told the Supreme Court, “violent assailants have fired shots at DHS agents, thrown bricks and concrete at barricaded agents, and rammed into their vehicles with trucks.”

In that sense, the emergency appeal remained a major test of the president’s power to mobilize and deploy the guard in American cities.

The court’s decision came weeks after a shooting in Washington, DC, in late November that killed one National Guard member and critically wounded another. The shooting suspect, Rahmanullah Lakanwal, is an Afghan national who previously worked with the US in Afghanistan. Lakanwal has been charged with several crimes including premeditated murder and assault with intent to kill.

Trump is using the National Guard in Washington under a different federal law that was not at issue before the Supreme Court.

Trump had argued that a lower court decision blocking that deployment in Chicago “improperly impinges on the president’s authority and needlessly endangers federal personnel and property,” effectively inserting the courts into the chain of command.

The Supreme Court was asked to take up the issue as the administration was attempting to deploy guard members to multiple cities, including Portland, Memphis and Los Angeles.

A federal district court in Chicago blocked the deployment there in October.

US District Judge April Perry, nominated to the bench by President Joe Biden, said the administration overstepped its authority with the deployment given the conditions on the ground. In a lengthy opinion tied to her short-term order, she questioned the administration’s justification for the troops.

Perry pointed to what she described as a “troubling trend” of the administration of “equating protests with riots.” The Chicago-based 7th Circuit largely upheld that decision — allowing the administration to federalize the guard members but not deploy them.

In the Chicago case, Trump had federalized 300 members of the Illinois National Guard to “protect officers and federal property.” Another 400 federalized members of the Texas National Guard were also set to be deployed to the state. The administration said those guard members would serve “solely in a protective capacity” and would not engage in law enforcement.

Under the new arrangement announced in November, about 200 Texas National Guard troops in Chicago were sent home and about 200 more remained on standby at Fort Bliss. Roughly 300 Illinois National Guard troops will remain in the Chicago area.

Though the case was initially speeding through the courts, the justices slowed things down considerably in late October by ordering additional briefing on a technical but important question about what the law means when it allows a president to use the guard to augment “regular forces to execute the laws of the United States.”

Illinois argued that language meant Trump could call in the guard to help the standing military, not civilian law enforcement agencies like ICE. The Department of Justice countered that reading would be counterintuitive since the standing military is generally barred from executing federal law. The state and the administration spent weeks filing briefs and counter briefs addressing that question.

To make its case for the deployments, the Justice Department has relied heavily on a Supreme Court decision from 1827 — Martin v. Mott. The case dealt with Jacob Mott, a member of the New York militia who disobeyed President James Madison’s order to mobilize during the War of 1812. The Supreme Court rejected Mott’s argument that Madison had misjudged the danger and wrote that “the authority to decide whether the exigency has arisen belongs exclusively to the president.”

The states challenging the administration have balked at the suggestion that the protests against ICE agents are akin to an invading foreign army.

This story was updated to include additional reporting.

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