WASHINGTON- The Supreme Court on Tuesday ruled against President Trump, saying he had no legal authority to deploy the National Guard to Chicago to protect federal immigration agents.
By a 6-3 vote, the justices denied Trump's appeal and upheld orders from a federal district judge and the U.S. Court of Appeals for the Seventh Circuit that said the president had exaggerated the threat and overstepped his authority.
The decision is a major defeat for Trump and his broad assertion that he had the power to deploy militia troops to American cities.
In an unsigned order, the court said the Militia Act allows the president to deploy the National Guard only if regular U.S. armed forces cannot quell the violence.
The law dating to 1903 says the president can call up and deploy the National Guard if he faces the threat of invasion or rebellion or if he “is unable with regular forces to execute the laws of the United States.”
That phrase turned out to be crucial.
Trump's lawyers assumed he was referring to police and federal agents. But after taking a closer look, the judges concluded that it referred to the regular U.S. military, not civilian law enforcement or the National Guard.
“Call the Guard to active federal duty under the [Militia Act]the president must be 'incapable' with the regular military 'of executing the laws of the United States,'” the court said in Trump v. Illinois.
That standard will rarely be met, the court added.
“According to the Posse Comitatus Law, the military is prohibited from executing[ing] laws except in cases and under circumstances expressly authorized by the Constitution or Act of Congress,” the court said. “So before the President can federalize the Guard… he must probably have statutory or constitutional authority to execute the laws with the regular military and must be 'incapable' with those forces to perform that function.
“At this preliminary stage, the Government has failed to identify a source of authority that allows the military to execute the laws in Illinois,” the court said.
Although the court acted on an emergency appeal, its decision is a significant defeat for Trump and is not likely to be overturned on appeal. Often, the court issues one-sentence emergency orders. But in this case, the justices wrote a three-page opinion to detail the law and limit the president's authority.
Judge Amy Coney Barrett, who oversees Illinois appeals, and Chief Justice John G. Roberts Jr. cast the deciding votes. Justice Brett M. Kavanaugh agreed with the result, but said he preferred a narrower, more limited ruling.
Conservative justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch dissented.
Alito, dissenting, said that “the court does not explain why the president's inherent constitutional authority to protect federal officials and property is not sufficient to justify the use of National Guard members in the relevant area for precisely that purpose.”
California Governor Gavin Newsom and Attorney. Gen. Rob Bonta filed a brief in the Chicago case that warned of the danger of the president using the military in American cities.
“Today, Americans can breathe a huge sigh of relief,” Bonta said Tuesday. “While this is not necessarily the end of the road, it is a significant and deeply gratifying step in the right direction. We plan to ask lower courts to reach the same result in our cases, and we are hopeful that they will do so quickly.”
The 9th U.S. Circuit Court of Appeals had allowed the deployments in Los Angeles and Portland, Oregon, after ruling that judges must defer to the president.
But U.S. District Judge Charles Breyer ruled Dec. 10 that federalized National Guard troops in Los Angeles must return to Newsom's control.
Trump's lawyers had not asserted in their appeal that the president had the authority to deploy the military to enforce regular law in the city. Instead, they said Guard troops would be deployed “to protect federal officers and federal property.”
The two sides in the Chicago case, as in Portland, told dramatically different stories about the circumstances that led to Trump's order.
Democratic officials in Illinois said small groups of protesters opposed aggressive law enforcement tactics used by federal immigration agents. They said police were able to contain the protests, clear entrances and prevent violence.
Instead, administration officials described repeated instances of disruption, confrontation, and violence in Chicago. They said immigration agents were harassed and prevented from doing their jobs, and that they needed the protection the National Guard could provide.
Trump's attorney general, D. John Sauer, said the president had the authority to deploy the Guard if agents were unable to enforce immigration laws.
“Faced with intolerable risks of harm to federal agents and coordinated, violent opposition to federal law enforcement,” Trump called on the National Guard “to defend federal personnel, property, and functions in the face of ongoing violence,” Sauer told the court in an emergency appeal filed in mid-October.
Lawyers for the state of Illinois disputed the administration's account.
“The evidence shows that federal facilities in Illinois remain open, people who have broken the law by attacking federal authorities have been arrested, and immigration law enforcement in Illinois has only increased in recent weeks,” state Attorney General Jane Elinor Notz said in response to the administration's appeal.
The Constitution gives Congress the power to “provide for the calling of the militia to execute the laws of the union, suppress insurrections, and repel invasions.”
But on October 29, the judges asked both sides to explain what the law meant when it referred to “regular forces.”
Until then, both sides had assumed he was referring to federal agents and police, not the permanent U.S. military.
A few days earlier, Georgetown Law professor and former Justice Department attorney Martin Lederman had filed a friend-of-the-court brief asserting that the “regular forces” cited in the 1903 law were the standing U.S. military.
His brief led the court to ask both sides to explain their views on the disputed provision.
Trump's lawyers maintained their position. They said the law referred to the “civil forces that regularly execute the laws,” not the standing army.
If those civilians cannot enforce the law, “there is a strong tradition in this country of favoring the use” of the National Guard, not the standing army, to quell internal unrest, they said.
Illinois state attorneys said “regular forces” are “full-time professional military.” And they said the president could not “even plausibly argue” that U.S. Guardsmen were necessary for law enforcement in Chicago.
