Supreme Court Refuses to Allow Trump to Deploy National Guard in Chicago

In a 6-3 ruling the Court smacks down Trump’s National Guard deployment in Chicago.

The Wall Street Journal reports Supreme Court Blocks National Guard Deployment to Chicago Area

The Supreme Court on Tuesday blocked President Trump from sending the National Guard into the Chicago area, dealing a rare loss to the president on an issue of executive power.

The decision, issued in an unsigned order on the court’s emergency docket, is the first time the justices have weighed in on Trump’s efforts to dispatch the military to American cities. Though the order is preliminary and applies only in Illinois, it suggests that the court is unwilling to rubber-stamp Trump’s assertions of broad authority to use the National Guard to manage protests and violent crime.

“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 wrote.

Three conservative justices—Clarence Thomas, Samuel Alito and Neil Gorsuch—dissented.

In early October, Trump called up several hundred National Guard members, saying he needed the troops to protect federal immigration agents at a detention facility in Broadview, Ill., just outside Chicago. The jail has been the site of persistent protests against Trump’s deportation policies.

The New York Times comments Supreme Court Refuses to Allow Trump to Deploy National Guard in Chicago

The Supreme Court on Tuesday refused to allow President Trump to deploy hundreds of National Guard troops in the Chicago area over the objection of Illinois officials, casting doubt on the viability of similar deployments in other American cities.

The justices’ order is preliminary, but it blocks the Trump administration for now from ordering the state-based military force to the Chicago area, where an immigration crackdown led to thousands of arrests and confrontations between residents and federal agents.

In its three-page unsigned ruling against the administration, the court refused to grant the president broad discretion to deploy the military in U.S. cities, citing an 1878 law, which bans the use of the military for domestic policing. It represented a rare departure from recent cases, in which the conservative majority has overwhelmingly sided with Mr. Trump in preliminary tests of presidential power.

Mr. Trump had also in recent months ordered the National Guard to Portland, Ore.; Los Angeles; and Washington, D.C., also over the objections of state and local leaders. The president’s efforts to use troops for domestic policing prompted legal challenges accusing the Trump administration of exceeding its authority and infringing on traditional state powers over policing. The state-based troops are typically deployed at the request of governors to respond to emergencies in their own states such as natural disasters.

Federal law allows the president to federalize members of the National Guard without the permission of state officials in certain circumstances, notably when there is a “rebellion or danger of a rebellion” against the government or when law enforcement is overwhelmed and cannot execute U.S. law.

The court took more than two months to rule on the emergency application. Before issuing its order, the justices took the unusual step in October of asking the parties to address the meaning of a specific key section of the statute. To federalize the National Guard, the president must determine that he is “unable with the regular forces” to execute U.S. laws. The justices asked whether “regular forces” meant the military or civilian law enforcement.

In its order on Tuesday, the majority agreed with Illinois officials that the term “regular forces” most likely referred to the U.S. military. To call in the Guard, the president must first determine that he is “unable” with the help of the military to execute U.S. laws — and for that reason, the court said he could likely take such a step only in the rare situations where he would be legally allowed to call in the military in the first place to execute the law.

“Such circumstances are exceptional,” the majority said, because of the Posse Comitatus Act of 1878, which makes it illegal to use federal troops for domestic policing under normal circumstances.

In a 16-page dissent, Justice Alito criticized his colleagues for resolving an issue the parties had not initially explored in their filings.

“There is no basis for rejecting the president’s determination that he was unable to execute the federal immigration laws,” Justice Alito wrote, joined by Justice Thomas.

Lawyers for Illinois told the justices in their brief that an “unnecessary deployment” of troops would “escalate tensions and undermine the ordinary law enforcement activities of state and local entities.”

“No protest activity in Illinois has rendered the president unable to execute federal law,” Mr. Raoul and lawyers for the City of Chicago said in their filing. They noted that the crackdown on immigration has continued with nearly 3,000 people arrested since the end of October.

Spotlight Kavanaugh

The Times commented “Justice Brett M. Kavanaugh wrote separately to say he agreed with the majority’s decision to deny the administration’s request, but on narrower grounds. The majority, he wrote, was too quick to cut off options for the president by suggesting that he could not federalize the National Guard even if he found he was struggling to protect federal personnel and property.”

The Wall Street Journal article concluded “The White House said the decision wouldn’t detract from Trump’s efforts to enforce immigration laws and quell violent protests.”

Then why was sending troops necessary in the first place?

They weren’t. Trump wanted to see what the Court would let him get away with.

Fortunately 6 justices reached the correct decision, including Justice Brett M. Kavanaugh.

I did not read all any of the actual court arguments. But based on the above, I think Kavanaugh may have things reasonably correct.