Block on Trump’s Chicago Military Deployment Stands As SCOTUS Takes Up National Guard Question

A district court block to President Donald Trump’s attempted military deployment in Chicago will stand for at least the next few weeks as the Supreme Court takes up a key question over the president’s ability to federalize the state National Guard. 

In response to Trump’s emergency appeal of the lower court block, Supreme Court Justice Amy Coney Barrett Wednesday referred a question to the full court on the language of the statute the president invoked in calling up to 300 members of the Illinois Guard into federal service for deployment in Chicago earlier this month.

To federalize the Illinois Guard members, Trump invoked 10 U.S.C. 12406 (Title 10), an archaic and rarely used statute that allows the president to federalize state Guard troops when the country faces foreign invasion, when the U.S. government faces rebellion or when the president is unable to execute laws with “regular forces.”

In addition to the Illinois Guard, Trump also attempted to send federalized members of the Texas Guard to Chicago.

Barrett asked the full court to consider whether the term “regular forces” in the statute refers to the regular forces of the U.S. military — such as members of the Army, Navy and Air Force.

Barrett’s referral of the question was unexpected, as the states and cities challenging Trump’s domestic military deployments, and the Department of Justice (DOJ) attorneys defending them, generally haven’t broached whether the normal armed forces should be considered part of the “regular forces” referred to in the statute. 

Parties involved in the lawsuits, including the Trump administration, have instead largely interpreted that to refer to federal law enforcement personnel executing federal law, such as the FBI or Immigration and Custom Enforcement (ICE) agents.

The question appears to stem from an amicus brief filed to the Supreme Court by Martin Lederman, a former DOJ deputy assistant attorney general who’s now a professor at the Georgetown University Law Center.

Rather than referring to federal law enforcement, “regular forces” instead must refer to members of the formal armed forces within the Department of Defense, Lederman argued in the brief.

Lederman noted that throughout U.S. history, and specific legal history of 10 U.S.C. 12406, “regular” was often used as a shorthand for the Army — “the regulars” — as opposed to the state militias that evolved into today’s National Guard.

“It is highly uncommon, however, to refer to such civilian officials and employees as any kind of ‘forces’ at all; and they certainly are not ‘the regular forces’ to which [Title 10] refers,” Lederman wrote. 

Because Trump never sent members of the armed forces to assist ICE in Chicago, Trump could not determine that he was unable to execute federal law with “regular forces” as required by Title 10 and therefore lacked the authority to federalize members of the Illinois Guard, Lederman asserted.

However, he stopped short of arguing that the president has the authority to execute federal law with members of the armed forces. That’s an authority regulated by several other laws — most prominently the statutes that make up the Insurrection Act, one of the president’s most expansive emergency powers.

“Amicus does not mean to suggest that this Court should opine on the scope of the President’s powers to use the military pursuant to the Insurrection Act,” Lederman wrote.

If the Supreme Court agrees with Lederman that “regular forces” refers to the U.S. military, it could upset almost all of Trump’s domestic military deployments so far. With exception to Los Angeles, Trump hasn’t sent regular military forces to any city in which he’s attempted to deploy National Guard troops.

When he sent troops to Los Angeles earlier this year, Trump simultaneously deployed hundreds of the Marines and federalized members of the California Guard.

Barrett asked Illinois and Chicago, and the DOJ, to submit written arguments in response to her question by Nov. 17, meaning the district court block to Trump’s Windy City deployment will likely remain in place over the coming weeks.