ICE agents have been deployed in Chicago to make arrests but in October the Trump administration federalized the Illinois National Guard and ordered 300 troops to deploy near an ICE facility for the purpose of maintaining order. Chicago sued and a judge initially sided with the city.
In deploying 300 members of the National Guard to Chicago in early October, Trump relied on a federal law that allows the president to call up the National Guard for federal service when there is an invasion or a rebellion or danger of rebellion, as well as when he cannot “with the regular forces … execute the laws of the United States.”
The state of Illinois and the city of Chicago went to federal court to challenge Trump’s decision to deploy the National Guard there. On Oct. 9, Perry issued an order that prohibited the federal government from “ordering the federalization and deployment of the National Guard of the United States within Illinois.”
One week later, the U.S. Court of Appeals for the 7th Circuit largely upheld Perry’s order. It reasoned that “[t]he spirited, sustained, and occasionally violent actions of demonstrators in protest of the federal government’s immigration policies and actions, without more, does not give rise to a danger of rebellion against the government’s authority.” The court of appeals also found “insufficient evidence that protest activity in Illinois has significantly impeded the ability of federal officers to execute federal immigration laws.”
Once the 7th Circuit had sided with the city, the Trump administration made an appeal to the Supreme Court, asking them to stay the court's order while the issue was being decided.
Today, the Supreme Court rejected that request and found that the Trump administration hadn't made the case for deployment of the National Guard.
The Supreme Court said Tuesday that it would not allow President Donald Trump to deploy the National Guard in the Chicago area for now, a significant setback for his campaign to push troops into cities across the country over the objections of local and state leaders.
The president’s ability to federalize the National Guard likely only applies in “exceptional” circumstances, the court’s unsigned order said.
“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,” it added.
The decision was effectively 6-3, with Justices Thomas, Gorsuch and Alito dissenting.
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.
Justice Kavanaugh issued a concurring decision which agreed with the majority on the outcome but disagreed on the arguments made to reach that outcome. So that leaves Chief Justice Roberts and Justice Amy Coney Barrett who sided with the court's three liberals.
The majority decided a key issue in the case was whether the law regarding deployment of the guard referred to federal agents or the military.
The Trump administration justified the mobilization by invoking a law that allows the president to federalize the national guard if he is unable to execute federal law using “regular forces.”
The administration argued that language referred to civilian law enforcement agencies, such as Immigration and Customs Enforcement. The court’s majority rejected that argument. “Regular forces” referred to the U.S. military, the court’s order said. Because of that, the justices said, the president’s authority to federalize the National Guard “likely applies only where the military could legally execute the laws.”
Under the Posse Comitatus Act, the circumstances in which the military can be employed for law enforcement purposes are very strictly limited, the court noted, suggesting that the same would be true for Guard troops.
While the case at hand only involved the Guard's deployment in Chicago, it will have an impact on other cities. For instance, National Guard troops were just deployed to New Orleans.
About 350 National Guard troops will arrive in New Orleans before New Year’s Eve, Gov. Jeff Landry of Louisiana said on Tuesday, and they will stay through at least February.
Mr. Landry confirmed the deployment both in an appearance on Fox News and on social media. Following Washington, D.C., and Memphis, New Orleans would be the latest Democratic-led city to receive Guard troops after President Trump criticized it for high rates of crime...
In the case of New Orleans, the deployment of National Guard troops was embraced by the Louisiana governor, and the Tuesday announcement came months after Mr. Landry, a Republican, first wrote to Mr. Trump asking him to sign off on sending them to the city. While Mr. Landry can dispatch the Guard without presidential input, authorization from the administration allows the federal government to help cover the expenses.
So we'll have to see what happens in a state where the governor supports the action, but in places like Chicago and Portland, this will be the end of these deployments, at least for now.
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