WASHINGTON — For the first time, the Supreme Court is set to rule on whether the president has the right to station troops in American cities over the objections of local and state officials.
The decision can come at any moment.
And even a one-line order of support for President Trump would send a message that he is free to use the military to carry out his orders—and particularly in Democratic-controlled cities and states.
Trump Administration Lawyers filed an emergency appeal Last week, he asked the court to overturn judges in Chicago who blocked the deployment of the National Guard there.
Chicago judges said Trump exaggerated the threat facing federal immigration agents and equated “protests with riots.”
But Trump administration lawyers said those judges do not have the authority to second-guess the president. The authority to deploy the National Guard “is vested in his sole discretion by law.” they argued in their appeal in Trump v. Illinois.
This broad claim on executive power could win favor with court conservatives.
Administration lawyers told the court that the National Guard would “protect federal personnel, property and functions in the face of ongoing violence” in response to aggressive immigration enforcement, but it would not conduct routine policing.
Still, Trump has repeatedly threatened to send U.S. troops to San Francisco and other Democratic-led cities to carry out routine law enforcement measures.
When he sent 4,000 Guardsmen and 700 Marines to Los Angeles in June, their mission was to protect federal buildings from protesters. But state officials said the troops went beyond that and were used to stage a show at MacArthur Park in July.
Newsom and Bonta warn of danger
That's why legal experts and Democratic Party officials are sounding the alarm.
“Trump v. Illinois is a defining moment for this court,” said Georgetown law professor Steve Vladeck, a frequent critic of the court’s pro-Trump emergency rulings. “For the Supreme Court to rule allowing the President to send troops into our cities based on fabricated (or even government-induced) facts…would be a terrible precedent for the Court not only for what it would allow President Trump to do now, but for even more gross tyrannical behavior.”
California Atty. General Rob Bonta and Governor Gavin Newsom filed a plea in the Chicago case warning of danger ahead.
“On June 7, for the first time in the history of our country, the President called [the Militia Act of 1903] federalize the state's National Guard over the objections of the state's governor. It has since become clear that the federal government's actions in Southern California earlier this summer were only the opening salvo in an attempt to change the role of the military in American society,” they said in a statement.
“Never in our history has a President used the military in this way: as his personal police force, which could be used to perform any law enforcement missions he deems appropriate… The Federal Government is committed to the creation of a standing army, drawn from state militias and deployed at the direction of the President on a nationwide basis for civilian law enforcement purposes for an indefinite period of time.”
Conservatives give examples of civil rights
Conservatives counter that Trump is seeking to enforce federal law despite strong resistance and sometimes uncooperative behavior from local officials.
“Portland and Chicago have seen violent protests outside federal buildings, attacks on ICE and DHS agents, and organized efforts to block enforcement of immigration laws,” said UC Berkeley law professor John Yu. “While local officials have raised cries of federal 'occupation' and 'dictatorship,' the Constitution entrusts The president's duty is to “see that the laws are faithfully executed.”
He noted that past presidents “used the same powers to desegregate Southern schools in the 1950s after Brown v. Board of Education and to protect civil rights protesters in the 1960s. Those who applaud those interventions now cannot deny the same constitutional power when exercised by a president they oppose,” he said.
The legal battle so far has sidestepped Trump's broadest claims of unchecked power, focusing instead on whether he is acting in accordance with laws passed by Congress.
The Constitution gives Congress the power to “provide for the summoning of a militia to execute the laws of the Union, suppress insurrections, and repel invasions.”
Beginning in 1903, Congress stated that “the President may call into the army members of the Federal Service and units of the National Guard of any State in such numbers as he may think necessary” if he faced “danger of invasion by a foreign power…danger of insurrection against the authority of the Government of the United States, or if the President is unable to execute the laws of the United States.”
While Trump administration lawyers argue he faces an “insurrection,” the legal dispute has centered on whether he is “incapable of complying with the law.”
Lower courts blocked the rollout
Federal district judges in Portland and Chicago blocked Trump's deployment after ruling that protesters did not interfere with U.S. immigration agents doing their jobs.
Judge Karin Immergut, a Trump appointee, described the administration's description of “war-ravaged” Portland as “not connected to the facts.”
In Chicago, Judge April Perry, a Biden appointee, said “political opposition is not rebellion.”
But two appeals courts—the 9th Circuit in San Francisco and the 7th Circuit in Chicago—have ruled differently.
The 9th Circuit panel said judges should heed the president's assessment of the danger immigration agents face. Applying that standard, the appeals court ruled by a 2-1 vote that the National Guard deployment to Portland could continue.
But Chicago's 7th District panel agreed with Perry.
“The facts do not justify the President's actions in Illinois, even if they give substantial credit to his allegations,” they said in score 3-0 last week. “Federal facilities, including the Broadview processing center, remained open despite regular demonstrations against the administration's immigration policies. And while federal officials faced sporadic disruptions, they were quickly contained by local, state and federal authorities.”
Lawyers for Illinois and Chicago agreed and urged the court to reject Trump's appeal.
“There is no basis for arguing that the President is ‘incapable’ of ‘executing’ federal law in Illinois,” they said. “Federal facilities in Illinois remain open, individuals who broke the law by attacking federal authorities have been arrested, and immigration enforcement in Illinois has only increased in recent weeks.”
U.S. Attorney General John Sauer, appearing at his confirmation hearing in February, said federal judges in Chicago had no legal or factual basis to block the Trump administration's deployment of troops.
(Chip Somodevilla/Getty Images)
Trump's attorney general, John Sauer, presented a very different version in his appeal.
“On October 4, the President determined that the situation in Chicago had become unsustainably dangerous for federal agents who now risk their lives while performing essential law enforcement functions,” he wrote. “The President has sent Federal Guardsmen to Illinois to protect Federal officials and Federal property.”
He disputed the idea that agents only encountered peaceful protests.
“On multiple occasions, federal officers were also beaten by protesters at the Broadview facility. Physical altercations became increasingly serious and confrontations became more violent as the size of the crowd increased throughout September,” Sauer wrote. “The rioters attacked federal officers with fireworks and pelted them with bottles, rocks and tear gas. More than 30 people [DHS] officers were injured during attacks on federal law enforcement at the Broadview facility alone, resulting in multiple hospitalizations.”
He said judges in Chicago had no legal or factual basis to block the rollout and called on the court to overturn their decisions.
