SCOTUS Says Trump Can’t Commandeer Illinois National Guard Troops

Legal Issues

from the noted-liberal-activist-justice-Kavanaugh-concurs dept

The Trump administration, for all intents and purposes, declared war on Chicago back in September. It was inevitable that Chicago and the state of Illinois would eventually be targeted by Trump, what with its Democratic leadership and Trump’s faux concerns about gun violence. Less than a month into his second presidential term, the administration sued the state and city of Chicago in hopes of forcing it to aid and abet Trump’s mass deportation programs.

The unofficial declaration of war (albeit one that specifically stated in an Truth Social that “Chicago about to find out why it’s called the Department of WAR”) was followed by even more extreme bullshit by the president: a call for the arrest of Illinois governor J.B. Pritzker and Chicago mayor Brandon Johnson for “failing to protect [ICE] officers.”

Meanwhile, ICE just kept losing. Its tactics in Chicago violated prior consent decrees, which led to judges freeing detainees almost as fast as ICE could detain them. On top of that, ICE, CBP, and an assortment of federal officers violated rights on a daily basis, resulting in even more rulings against the administration.

But all of these lower court rulings are pretty much meaningless if they’re just going to be overturned by the Trump’s ace in the hole: the fully compromised majority of the Supreme Court. The state sued the administration to block its commandeering of Illinois National Guard troops. The administration lost at the lower levels, prompting a review by the nation’s top court.

We can breathe a bit easier for the moment. SCOTUS says the administration can’t take control of the National Guard… at least not with the arguments it’s currently making. The government argued that its definition of the term “regular forces” in support of its National Guard takeover referred to “civilian law enforcement officers,” i.e., federal officers from ICE, CBP, Federal Protective Services, etc. The Supreme Court says the government is using the wrong definition. From the decision [PDF]:

We conclude that the term “regular forces” in §12406(3) likely refers to the regular forces of the United States military. This interpretation means that to call the Guard into active federal service under §12406(3), the President must be “unable” with the regular military “to execute the laws of the United States.”

Because the statute requires an assessment of the military’s ability to execute the laws, it likely applies only where the military could legally execute the laws. Such circumstances are exceptional: Under the Posse Comitatus Act, the military is prohibited from “execut[ing] the laws” “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” 18 U. S. C. §1385. So before the President can federalize the Guard under §12406(3), he likely must have statutory or constitutional authority to execute the laws with the regular military and must be “unable” with those forces to perform that function.

The circumstances aren’t what the administration claims they are. And if they are getting close to meeting Trump’s exaggeration of anti-ICE protests, etc., then he has the obligation to bring this before Congress, rather than unilaterally declaring everything to be so completely out of control, he’s practically obligated to take control of local National Guard units.

Despite his constant blustering and endless social media rants, the administration has yet to justify this bold, unprecedented use of military force to help handle immigration enforcement.

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 President has not invoked a statute that provides an exception to the Posse Comitatus Act. Instead, he relies on inherent constitutional authority that, according to the Government, allows him to use the military to protect federal personnel and property. But the Government also claims—consistent with the longstanding view of the Executive Branch—that performing such protective functions does not constitute “execut[ing] the laws” within the meaning of the Posse Comitatus Act. If that is correct, it is hard to see how performing those functions could constitute “execut[ing] the laws” under §12406(3).

That means the injunction delivered by the Illinois federal court remains in place. The government is welcome to make other arguments at the lower level in hopes of getting this injunction lifted. But for now, Trump has lost at the highest level — and the one he most expected to have his back no matter what.

There are additional opinions attached to this very short majority ruling. The first is Justice Kavanaugh’s rather bitter concurrence. The most remarkable part of his addition to this ruling is a footnote that makes it pretty clear he’s chafing a bit after becoming part of the unofficial legal parlance. An earlier ruling of his said it was perfectly fine for federal officers to treat skin color or accented English as reasonable suspicion for a stop. The kind of stops ICE performs most frequently are now known as “Kavanaugh stops,” now that the Supreme Court (actually just Kavanaugh spouting off in the shadow docket) has determined “Terry stops” are too respectful of rights.

The State and the Government disagree about whether the immigration officers have violated the Constitution in making certain immigration stops and arrests. The basic constitutional rules governing that dispute are longstanding and clear: The Fourth Amendment requires that immigration stops must be based on reasonable suspicion of illegal presence, stops must be brief, arrests must be based on probable cause, and officers must not employ excessive force. Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity. Cf. Whren v. United States, 517 U. S. 806, 813 (1996) (“[T]he Constitution prohibits selective enforcement of the law based on considerations such as race”).

Hmm. That’s certainly not what he said just a couple of months earlier. Oh, and Kavanaugh thinks the majority goes too far in its narrow reading of the statue. He proposes a hypothetical that sure sounds a whole lot like what went down in DC on January 6, 2021:

Consider a hypothetical example. Suppose a mob rapidly gathers outside the U. S. Courthouse in Philadelphia in response to an unpopular decision (or to influence the outcome of a pending matter). Suppose also that the mob is threatening to storm the courthouse and attack the federal judges, prosecutors, and other personnel inside, and to damage or burn down the building, thereby preventing the execution of federal law. Suppose further that U. S. military forces cannot readily mobilize to deploy to the site in time, that the local police and federal court security officers are outnumbered, and that the President wants to federalize National Guard units to protect the courthouse and the judges, prosecutors, and other personnel. Under the Court’s order today, even in those circumstances the President presumably could not federalize the National Guard under §12406(3).

Come on, Brett. Don’t play dumb. The storming of a federal building already happened and it was never a question of whether Trump could do anything about it, but rather a question of if he would do anything about it. We already have that answer, so this speculative theory only works when a president is more concerned about protecting people other than himself when the shit goes down. And if the administration reads between the lines of this hypothetical, it’s going to see a way to wash its hands of any responsibility if the next election results in the Democratic party taking back the Oval Office.

For now, the administration isn’t allowed to send National Guard units to Chicago. It has also already been blocked from doing so in Portland, Oregon. If Trump wants to use military troops to backstop his massively unpopular mass deportation efforts, he’s going to have to start declaring war on some “red” states, where he’s more likely to find state officials willing to deploy troops on his behalf. If he really wants this martial law thing to take off, he’s going to have to do it everywhere, rather than just in places run by people he doesn’t like.

Filed Under: brett kavanaugh, chicago, clarence thomas, doj, illinois, kavanaugh stops, martial law, mass deportation, national guard, samuel alito, supreme court