Lawyers representing the state of Illinois and the city of Chicago urged the Supreme Court on Monday afternoon to leave in place a ruling by a federal judge that prohibits the Trump administration from deploying the National Guard to Illinois. Illinois Solicitor General Jane Notz told the justices that “the unnecessary deployment of military troops, untrained for local policing, will escalate tensions and undermine the ordinary law enforcement activities of state and local entities, which would need to divert resources to maintain safety and order.”
The dispute is one of several over the Trump administration’s efforts to deploy National Guard troops, who are normally controlled by the states, to major cities. The Trump administration has cited the need to fight crime in those cities and to protect federal officials enforcing immigration laws to justify such deployments, although state and local government officials have pushed back against the Trump administration’s characterization of the conditions on the ground.
Trump authorized the deployment of 300 members of the National Guard to Chicago earlier this month. He relied on a federal law that allows the president to use the National Guard for federal service when there is an invasion or a rebellion or danger of rebellion, or when he cannot “with the regular forces … execute the laws of the United States.”
U.S. District Judge April Perry issued a temporary restraining order on Oct. 9 that blocked the federal government “from ordering the federalization and deployment of the National Guard of the United States within Illinois” for two weeks. Perry explained in an opinion on Oct. 10 accompanying her order that although she did “not doubt that there have been acts of vandalism, civil disobedience, and even assaults on federal agents,” she did not regard declarations by federal officials to support the government’s contentions as “reliable.”
The U.S. Court of Appeals for the 7th Circuit last week upheld the portion of Perry’s order that barred the government from deploying the National Guard in Illinois. In an unsigned order, the court of appeals concluded that “[t]he spirited, sustained, and occasionally violent actions of demonstrators in protest of the federal government’s immigration policies and actions, without more, does not give rise to a danger of rebellion against the government’s authority.” Moreover, the court added, “there is insufficient evidence that protest activity in Illinois has significantly impeded the ability of federal officers to execute federal immigration laws.”
U.S. Solicitor General D. John Sauer came to the Supreme Court on Friday, asking the justices to intervene. Sauer contended that Perry’s order “cause[s] irreparable harm to the Executive Branch by countermanding the President’s authority as Commander in Chief, jeopardizing the lives and safety of DHS officers, and preventing the President and the Secretary of War from taking reasonable and lawful measures to protect federal personnel from the violent resistance that has persisted in the Chicago area for several months.”
Shortly after receiving the Trump administration’s filing on Friday afternoon, the court directed Illinois and Chicago to file their responses by Monday at 5 p.m. EDT – a quick turnaround time. The court did not act on Sauer’s request for an administrative stay, which would allow the government to deploy troops while it considered the Trump administration’s request to pause Perry’s order.
Once the Trump administration has submitted its reply to Monday’s filings, the Supreme Court could act at any time.
The state and city offered several different arguments to support their contention that the justices should stay out of the dispute right now. First, they suggested, the Supreme Court is ultimately “highly unlikely” to weigh in on the merits of the dispute – an important factor in determining whether to award temporary relief – because Perry’s order will expire in just three days, and because both the 7th Circuit and the U.S. Court of Appeals for the 9th Circuit, addressing a challenge to the deployment of the National Guard in California earlier this year, have applied the same legal analysis in addressing “the legal questions implicated by the federalization and deployment of the National Guard,” so there is no conflict among the lower courts requiring the court’s intervention.
Illinois and Chicago added that the Trump administration had not shown that it is likely to win on the merits of the dispute, another key factor in deciding whether to grant relief. According to them, the lower court was correct when it rejected the federal government’s contention that courts can never review the president’s decision to deploy the National Guard.
The federal government is also unlikely to prevail on its contention that it can deploy the National Guard because there is either a “rebellion” or an “inability to execute federal law,” Chicago and Illinois argued. Although the lower courts gave “a great level of deference” to Trump’s determination, they wrote, Perry concluded that “[t]he unrest” that the federal government “complain[s] of has consisted entirely of opposition (indeed, sometimes violent) to a particular federal agency and the laws it is charged with enforcing. That is not opposition to the authority of the government as a whole.”
Illinois and Chicago also emphasized that the 7th Circuit’s order helped to guard against “any intrusion on ‘federal interests’ imposed by the 14-day TRO.” “That order,” they said, “which permitted the National Guard to remain federalized but temporarily prohibits the deployment of National Guard members in Chicago, acknowledges the federal interests in this space while imposing a temporary freeze of the status quo while this fast-moving and complex litigation proceeds.”
Separately, in a lengthy ruling on Monday afternoon, a divided 9th Circuit panel temporarily paused an order by U.S. District Judge Karin Immergut that blocked the Trump administration from federalizing 200 members of the Oregon National Guard for 60 days. The majority concluded that “it is likely that the President lawfully exercised his statutory authority” allowing “the federalization of the National Guard when ‘the President is unable with the regular forces to execute the laws of the United States.’ The evidence the President relied on reflects a ‘colorable assessment of the facts and law within a ‘range of honest judgment.’’”
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