Over dissent from Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, the Supreme Court declined to let the Trump administration immediately deploy the National Guard in Chicago, in the latest high court test of Donald Trump’s sweeping claims of authority in his second term.
In an unsigned order on Tuesday, the court said that at this stage in the litigation, the government couldn’t carry its burden to show that federal law lets the president federalize the Guard in his authority to protect federal personnel and property in Illinois. “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 court said in the order.
The administration had asked the justices to lift an order from a federal judge that blocked deployment in October. After an appellate panel declined to disturb that order, the administration turned to the high court, as it has done in dozens of cases this year, often successfully.
Though Tuesday’s order is a provisional one that doesn’t mark the end of this litigation, it nonetheless stands out as a high-profile loss for the administration before the justices.
Justice Brett Kavanaugh wrote a concurring opinion explaining that he agreed with the majority on the bottom line but said he would’ve ruled against the administration on narrower grounds.
Alito wrote a dissent, joined by Thomas, criticizing how the court handled the litigation and said the majority “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.”
Gorsuch wrote in his own dissent that he thought that declarations filed by federal law enforcement officials entitled the administration to relief at this stage, but that he “would hazard no opinion beyond that, leaving instead all the weighty questions outlined above for another case where they are properly preserved and can receive the full airing they so clearly deserve.”
Unsuccessfully seeking emergency relief from the justices, U.S. Solicitor General John Sauer wrote that the lower court order from U.S. District Judge April Perry, a Biden appointee, “countermands the exercise of the President’s Commander-in-Chief authority and projects its own authority into the military chain of command.” He wrote that federal agents were attempting to enforce immigration law in the Chicago area but their efforts “are met with prolonged, coordinated, violent resistance that threatens their lives and safety and systematically interferes with their ability to enforce federal law.”
Lawyers for Illinois and the city of Chicago countered that “state and local law enforcement officers have handled isolated protest activities in Illinois, and there is no credible evidence to the contrary.” They wrote that the state “seeks to protect its sovereignty, retain control over local policing, and protect the basic structure of American federalism from unprecedented intrusion.” Perry found that the administration had failed to satisfy legal requirements for using the Guard: She said that there wasn’t enough evidence of rebellion or danger of rebellion, and that there wasn’t enough evidence that Trump can’t execute federal law with regular forces. Explaining her decision, the judge cast doubt on the federal government’s credibility, writing that while she “does not doubt that there have been acts of vandalism, civil disobedience, and even assaults on federal agents, the Court cannot conclude that [the government] Defendants’ declarations are reliable.” Among other things, she noted that officials didn’t disclose that federal grand juries refused to indict at least three people whose arrests the administration cited as justification for deployment. Instead of immediately ruling in October, the Supreme Court asked for supplemental briefing on the meaning of the federal law at issue. In that briefing, the administration maintained that the president has unreviewable discretion, while Illinois and Chicago said the federal government’s position “is impossible to square with the Founders’ fears about deploying the military domestically.” Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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