WASHINGTON — The Supreme Court ruled against President Trump on Tuesday and said he does not have the legal authority to deploy the National Guard to Chicago to protect federal immigration agents.
Acting on a 6–3 voteThe justices rejected Trump's appeal and upheld rulings from a federal district judge and the 7th U.S. Circuit Court of Appeals that said the president exaggerated the threat and exceeded his authority.
This decision is a major defeat for Trump and his team. broad claim that he had the right to station militia troops in US cities.
In an unsigned ruling, the court said the Militia Act allows the president to activate the National Guard only if regular U.S. military forces fail to quell violence.
The 1903 law states that the president can call out and deploy the National Guard if he faces a threat of invasion or insurrection or is “unable by regular forces to execute the laws of the United States.”
This phrase turned out to be decisive.
Trump's lawyers suggested that these were police and federal agents. But after careful consideration, the judges concluded that the case involved regular U.S. military forces, not civilian law enforcement or the National Guard.
“Call the Guard into active federal service under [Militia Act]the president must be “incapable,” through regular military forces, “of executing the laws of the United States,” the court said in Trump v. Illinois.
This standard will rarely be met, the court added.
“Under the Posse Comitatus Law, the military is prohibited from executing[ing] laws, except in cases and circumstances expressly authorized by the Constitution or an act of Congress,” the court said. “Therefore, before the President can federalize the Guard… he must presumably have statutory or constitutional authority to execute laws with regular military forces and must be 'unable' with those forces to perform that function.
“At this preliminary stage, the government has failed to identify the source of authority that would enable the military to enforce laws in Illinois,” the court said.
Although the court acted on an emergency appeal, its decision is a significant defeat for Trump and is unlikely to be overturned on appeal. Often the court will issue emergency orders that are one sentence long. But in this case, the justices wrote a three-page opinion outlining the law and limiting the president's powers.
The deciding votes were cast by Judge Amy Coney Barrett, who oversees the appeals for the state of Illinois, and Chief Judge John J. Roberts Jr. Justice Brett M. Kavanaugh agreed with the result but said he preferred a narrower, more limited ruling.
Conservative Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch dissented.
Alito, dissenting, said that “the court cannot explain why the President's inherent constitutional powers to protect federal officials and property are insufficient to justify the deployment of National Guard members in the area in question for precisely that purpose.”
California Governor Gavin Newsom and Etty. General Rob Bonta filed a plea in the Chicago case it warned of the dangers of the president using the army in American cities.
“Americans can breathe a sigh of relief today,” Bonta said Tuesday. “While this is not necessarily the end of the road, it is a significant and very welcome step in the right direction. We plan to ask the lower courts to achieve the same result in our cases – and hope they do so quickly.”
The 9th U.S. Circuit Court of Appeals allowed military deployments in Los Angeles and Portland, Oregon, after ruling that judges must answer to the president.
But U.S. District Judge Charles Breyer reigned December 10 that federalized National Guard troops in Los Angeles should be returned to Newsom's control.
Trump's lawyers did not argue in their appeal that the president had the authority to use the military to carry out routine law enforcement tasks in the city. Instead, they said Guard troops would be deployed “to protect federal officers and federal property.”
Both sides in the Chicago case, as in the Portland case, told very different stories about the circumstances leading to Trump's order.
Democratic officials in Illinois said small groups of protesters objected to aggressive enforcement tactics used by federal immigration agents. They said police were able to contain the protests, clear entrances and prevent violence.
By contrast, administration officials described repeated incidents of unrest, confrontation and violence in Chicago. They said immigration agents are being harassed and prevented from doing their jobs and need the protection the National Guard can provide.
Trump's lawyer, Col. Gen. John Sauer, said the president has the authority to activate the Guard if agents fail to enforce immigration laws.
“Faced with an intolerable risk of harm to federal agents and a coordinated, violent effort to enforce federal law,” Trump called out the National Guard “to protect federal personnel, property and functions in the face of ongoing violence.” Sauer told the court in an appeal for emergency relief filed in mid-October.
Lawyers for the state of Illinois disputed the administration's account.
“The facts show that 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 intensified in recent weeks,” State Attorney General Jane Eleanor Notz said in a statement in response to the administration's appeal.
The Constitution gives Congress the power to “provide for the calling of a militia to execute the laws of the Union, suppress insurrections, and repel invasions.”
But on October 29, the judges asked both sides to explain what the law means when it comes to “regular forces.”
Prior to this, both sides had assumed that these were federal agents and police, rather than permanent US military forces.
Days earlier, Georgetown law professor and former Justice Department lawyer Martin Lederman filed a friend-of-the-court statement arguing that the “regular forces” referred to in the 1903 act were the standing U.S. Army.
His note prompted the court to ask both sides to explain their views on the disputed provision.
Trump's lawyers stood their ground. They said the law applied to “civil forces who regularly execute the laws” and not to a standing army.
If those civilians cannot enforce the law, “there is a strong tradition in this country of favoring the use” of the National Guard over standing military forces to quell domestic unrest, they say.
Illinois prosecutors said the “regular forces” are “full-time, professional military personnel.” And they said the president cannot “even plausibly claim” that U.S. Guard members are needed to enforce the law in Chicago.
