The Trump Administration, arguing that Chicago is in open rebellion, has asked the Supreme Court to give President Trump full permission to send hundreds of National Guard troops to the city and its suburbs. Both the state’s governor and the city’s mayor insist there is no need for that, that their own police are keeping order.
The emergency plea in Trump v. Illinois and Chicago by Justice Department lawyers contends that a 122-year-old federal law gives the President the power – without any interference from the courts – to send in the Guard when state and local officials cannot protect federal law enforcement officers or federal property.
Filed Friday, the 40-page document says that federal immigration officers in Chicago, rounding up immigrants who may be in the country illegally, “have been threatened and assaulted, attacked in a harrowing pre-planned ambush involving many assailants, rammed in their government vehicles, shot at with fireworks and other improvised weapons, injured and hospitalized and threatened in person and online – including by a $10,000 bounty for the murder of a senior federal official.” (That official was not named, but federal charges have been filed against a radical gang member for allegedly posting a bounty for the death of Border Patrol leader Gregory Bovino.)
A federal judge in Chicago, District Judge April M. Perry, has temporarily blocked the sending of Guard troops into Chicago, while a challenge to that unfolds in federal court. The judge has tentatively ruled that the situation in Chicago does not meet the requirement of the 1903 law for dispatching the National Guard. On Thursday, a federal appeals court refused to disturb that order.
The Administration’s new request to the Supreme Court asked the Justices to issue a temporary order to permit the troop deployment to go ahead as the court review proceeds. The plea was filed with Justice Amy Coney Barrett, who handles emergency matters originating in the region that includes Illinois. She told state and city officials to respond by tomorrow afternoon. It is likely that the issue will be passed to the full Court.
The law on which the Administration is relying was enacted in 1903, as part of a broad rewriting of federal laws enabling the President to summon to duty National Guard troops if (a) there is a threat of a foreign invasion, (b) a rebellion against federal authority, or a threat of that, is occurring, or (c) the President cannot enforce federal laws with active-duty military troops.
Administration lawyers contend that there is an ongoing rebellion but, at least, there is a real threat of that, and also assert that immigration enforcement officials are being impeded in enforcing federal law. (There is a lively dispute among legal experts on whether the federal officers who are disabled by an uprising means only regular military or, as the Trump legal team interprets it, also includes federal enforcement officers like immigration [such as ICE] officers.)
Among other arguments the Administration makes in the new filing is that the Supreme Court, in a ruling in an 1827 case (Martin v. Mott) ruled that the authority to federalize the state militia – predecessors to the National Guard – is the President’s alone and no one may interfere with it. Critics of the Trump maneuver, however, point to a 1932 decision by the Court (Sterling v. Constantin) that the courts have some authority to rule on actions by troops once they have been deployed.
The controversy over President Trump’s use of National Guard troops – and also U.S. Marines — to protect immigration agents and federal property during immigration roundups has been developing since June, with the first deployment to Los Angeles.
A federal judge there ruled that the use of the military in ordinary policing duties is forbidden under an 1878 law, the Posse Comitatus Act. However, that order has been put on hold temporarily while an appeals court considers the dispute there. That case has not yet reached the Supreme Court.
In moving to the Supreme Court to get permission to deploy the Guard to Chicago and Illinois, the Trump Administration noted what had been happening in Los Angeles, and argued that there has developed “a disturbing and recurring pattern.”
The pattern, the filing said, begins with legitimate enforcement efforts of immigration law, which then meets resistance on the ground, leading to violence and then to a federal court which “substitutes its own judgment for the President’s about the need” to bolster federal agents’ operations – countermanding the orders of the President as Commander in Chief.
At this stage, the only issue before the Supreme Court is whether to temporarily clear the way for the sending of Guard troops to Chicago and Illinois. Administration lawyers asked for immediate permission to do that, plus a more lasting order to let the use of troops continue while the legality of the operation unfolds in the courts.
The Court is not being asked at this point to decide whether the use of troops in the current situation is legal, but only whether to bar court interference until that question is finally settled, perhaps by the Supreme Court.
The Court, while not being asked to proceed itself to rule on the President’s authority, does have the option to move ahead now to decide that within coming weeks. There may be some hint of what the Court may do when it rules on what the Administration is now seeking.
One of the issues that a higher federal court decides to put a lower court’s order on hold is whether the party asking for that postponement is likely to win when the legal dispute is finally resolved – a sort of preliminary prediction of a potential outcome. The Court has complete discretion to do that.
