On December 23, the Supreme Court rejected an effort by Trump to prevent a federal district court order from going into effect that barred him from deploying National Guard troops to Chicago. The 6-3 order was the first Court ruling against Trump on this issue although the issue also remains pending elsewhere as well.
What happened in this case?
As part of his “aggressive and unprecedented use” of executive power, Trump deployed 300 National Guard troops to Chicago in early October, purportedly to protect federal agents engaged in immigration enforcement activity. The governor of Illinois and Mayor of Chicago strongly disagreed, and filed suit to stop Trump in federal district court in Chicago.
Federal district court judge April Perry issued a temporary restraining order on October 9 which, as slightly modified by the Seventh Circuit, halted Trump from National Guard deployment in Chicago. Trump took the issue to the Supreme Court on its “shadow docket,” asking that the court stay the district court order and allow deployment pending a final ruling in the case. The Court did not decide the motion for several months.
How did the Supreme Court decide?
Five justices, including Chief Justice Roberts and Justice Barrett, plus moderate Justices Sotomayor, Kagan, and Jackson, joined an unsigned opinion that rejected Trump’s motion and upheld the lower court order in Trump v Illinois. As they explained, a key issue was the proper interpretation of 10 USC 12406(3), a federal law relied on by Trump that allows him to federalize the Guard if he is “unable with the regular forces to execute the laws of the United States.” The majority wrote that “regular forces” means “regular forces” of the US military, so that the President can mobilize the Guard only where he is authorized to perform a function using the regular military but is “unable” to do so.
In this case, the majority went on, Trump had failed to identify any specific statute or other “source of authority” that would allow the military to execute laws in Illinois, since the federal Posse Comitatus Act generally forbids the military from executing civilian laws. There was thus no proper basis to lift the restraining order and allow Trump’s deployment of the Guard to proceed.
Justice Kavanaugh concurred with the majority opinion that the lower court order should not be lifted, but on a narrower ground. Without more briefing and possibly oral argument, he would not have reached issues such as the scope of Trump’s authority and the Posse Comitatus Act.
What did Justices Thomas, Alito and Gorsuch say in dissent?
Justices Alito and Thomas, as well as Justice Gorsuch, argued that the stay requested by Trump should have been granted based narrowly on the parties’ claims, and that the Court should not have considered broader arguments. They expressed deference to Trump’s authority as President and the importance of avoiding “intrusion on the President’s inherent Article II powers and duties.”
What is the importance of the Court’s decision?
This ruling was the first time that the Supreme Court majority has ruled against Trump on his use of the National Guard, which he has sought to do across the country. Its language on the Posse Comitatus Act sends an important message about the limits of Trump’s authority to “deploy troops for domestic law enforcement.” As Mark Joseph Stern has written, Trump’s “rare and remarkable defeat” in the case appears to mark his “biggest Supreme Court defeat since his return to office” and has “major implications for other aspects of his agenda” as well.