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Justice Samuel Alito criticized the Supreme Court majority on Tuesday in a sharp dissent after the high court decided by a 6-3 vote to temporarily block the president. Donald Trump from the deployment of the National Guard in Chicago.
Alito said the high court's majority made “unreasonable” and “unwise” decisions in reaching the decision. The majority also did not give Trump enough respect after the president discovered that agitators were preventing immigration officers and other federal workers from doing their jobs in Chicago and that the National Guard needed to step in to help.
“Whatever you think of the current administration’s enforcement of immigration laws or the way ICE conducts its operations, protecting federal officials from potentially deadly attacks cannot be impeded,” Alito wrote.
Supreme Court Justice Samuel Alito (Erin Schaff/The New York Times via AP, Pool, File)
The lawsuit came as Trump invoked a rarely used federal law to federalize about 300 National Guard members and use them to protect federal personnel and buildings.
The Trump administration argued that protesters obstructed, assaulted and threatened ICE officers, and the National Guard was needed because reluctant Illinois Democratic leaders and local law enforcement failed to adequately address the issue, the administration said.
Illinois sued, and lower courts blocked the National Guard deployment, finding that Trump had failed to meet the law's criteria that a president can use reserve forces only if he is “unable, through regular forces, to execute the laws of the United States.” The Supreme Court decision upheld that decision while the case goes to trial.
Supreme Court The majority said in the unsigned order that “regular forces” meant the U.S. military, not ICE or other civilian law enforcement officials. The majority said that because Trump had found no justification for using regular military forces for domestic purposes in Chicago, there was no way to exhaust that option before using the National Guard.
JUDGE BLOCKED TRUMP'S NATIONAL GUARD DEPLOYMENT IN LOS ANGELES
The Department of Homeland Security criticized Illinois Democratic Gov. J.B. Pritzker (R) for failing to proactively respond to a chaotic anti-ICE protest in Broadview, Illinois. (Ana Moneymaker/getty Images and John Stegenga via Storyful
Alito, joined by Justice Clarence Thomas, dissented, saying the majority had prematurely raised and accepted an “eleventh-hour argument” about the meaning of “regular forces.” Justice Neil Gorsuch wrote a separate dissent.
The majority also took issue with the law's enforcement language, saying that if National Guard soldiers were simply protecting federal officers, it would not amount to law enforcement.
And if the National Guard were to enforce the laws, it could violate the Posse Comitatus Act, which says the military generally cannot act as domestic police unless Congress authorizes it to do so, the majority said.
Alito, an appointee of President George W. Bush, said he was “baffled” that most consider the Posse Comitatus Act so relevant, saying the president could use the military for “a range of domestic purposes.” The Constitution allows the president to use the military to respond to war, insurrection or “other serious public emergency,” Alito wrote.
The conservative justice also warned of the broader implications of the majority's decision as Trump sought to deploy the National Guard to other cities as part of a crackdown on immigration enforcement and street crime. The president also faced legal opposition in California and Portland, Oregon, but the Chicago case was the furthest along the court system.
A protester waves American and Mexican flags during a protest in Compton, California, June 7, 2025, after federal immigration enforcement operations. (Ethan Swope/Associated Press)
Require Trump to exhaust other military forces before using National Guard would lead to “outlandish results,” Alito said.
“Under the court's interpretation, members of the National Guard may arrest and process aliens facing deportation, but they will not have the legal authority to perform purely protective functions,” Alito wrote. “Our country has traditionally been wary of using soldiers as domestic police, but has been comfortable using them solely for defensive purposes.”
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Illinois argued that ICE protests were largely peaceful and that local law enforcement brought the unrest under control. The state will suffer irreversible harm unless the courts stop Trump from using the National Guard, state lawyers say.
“The planned deployment would violate Illinois’ sovereign interests in regulating and overseeing its own law enforcement activities,” the lawyers wrote, adding that “Illinois’s sovereign right to use its law enforcement resources where it sees fit is the type of ‘immaterial and unquantifiable interest’ that courts have found irremediable.”
