WASHINGTON — The Supreme Court is set to rule for the first time on whether the president has the power to deploy troops in American cities over the objections of local and state officials.
A decision could come at any time.
And even a one-line order siding with President Trump would send the message that he is free to use the military to carry out his orders — and in particular, in Democratic-controlled cities and states.
Trump administration lawyers filed an emergency appeal last week asking the court to reverse judges in Chicago who blocked the deployment of the National Guard there.
The Chicago-based judges said Trump exaggerated the threat faced by federal immigration agents and had equated “protests with riots.”
Trump administration lawyers, however, said these judges had no authority to second-guess the president. The power to deploy the National Guard “is committed to his exclusive discretion by law,” they asserted in their appeal in Trump vs. Illinois.
That broad claim of executive power might win favor with the court’s conservatives.
Administration lawyers told the court that the National Guard would “defend federal personnel, property, and functions in the face of ongoing violence” in response to aggressive immigration enforcement, but it would not carry out ordinary policing.
Yet Trump has repeatedly threatened to send U.S. troops to San Francisco and other Democratic-led cities to carry out ordinary law enforcement.
When he sent 4,000 Guard members and 700 Marines to Los Angeles in June, their mission was to protect federal buildings from protesters. But state officials said troops went beyond that and were used to carry out a show in force in MacArthur Park in July.
Newsom, Bonta warn of dangers
That’s why legal experts and Democratic officials are sounding an alarm.
“Trump v. Illinois is a make-or-break moment for this court,” said Georgetown law professor Steve Vladeck, a frequent critic of the court’s pro-Trump emergency orders. “For the Supreme Court to issue a ruling that allows the president to send troops into our cities based upon contrived (or even government-provoked) facts … would be a terrible precedent for the court to set not just for what it would allow President Trump to do now but for even more grossly tyrannical conduct.”
California Atty. Gen. Rob Bonta and Gov. Gavin Newsom filed a brief in the Chicago case warning of the danger ahead.
“On June 7, for the first time in our nation’s history, the President invoked [the Militia Act of 1903] to federalize a State’s National Guard over the objections of the State’s Governor. Since that time, it has become clear that the federal government’s actions in Southern California earlier this summer were just the opening salvo in an effort to transform the role of the military in American society,” their brief said.
“At no prior point in our history has the President used the military this way: as his own personal police force, to be deployed for whatever law enforcement missions he deems appropriate. … What the federal government seeks is a standing army, drawn from state militias, deployed at the direction of the President on a nationwide basis, for civilian law enforcement purposes, for an indefinite period of time.”
Conservatives cite civil rights examples
Conservatives counter that Trump is seeking to enforce federal law in the face of strong resistance and non-cooperation at times from local officials.
“Portland and Chicago have seen violent protests outside of federal buildings, attacks on ICE and DHS agents, and organized efforts to block the enforcement of immigration law,” said UC Berkeley law professor John Yoo. “Although local officials have raised cries of a federal ‘occupation’ and ‘dictatorship,’ the Constitution places on the president the duty to ‘take care that the laws are faithfully executed.’”
He noted that presidents in the past “used these same authorities to desegregate southern schools in the 1950s after Brown v. Board of Education and to protect civil rights protesters in the 1960s. Those who cheer those interventions cannot now deny the same constitutional authority when it is exercised by a president they oppose,” he said.
The legal battle so far has sidestepped Trump’s broadest claims of unchecked power, but focused instead on whether he is acting in line with the laws adopted by Congress.
The Constitution gives Congress the power “to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections and repel Invasions.”
Beginning in 1903, Congress said that “the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary” if he faces “danger of invasion by a foreign nation … danger of a rebellion against the authority of the government of the United States or the president is unable to execute the laws of the United States.”
While Trump administration lawyers claim he faces a “rebellion,” the legal dispute has focused on whether he is “unable to execute the laws.”
Lower courts have blocked deployments
Federal district judges in Portland and Chicago blocked Trump’s deployments after ruling that protesters had not prevented U.S. immigration agents from doing their jobs.
Judge Karin Immergut, a Trump appointee, described the administration’s description of “war-ravaged” Portland as “untethered to the facts.”
In Chicago, Judge April Perry, a Biden appointee, said that “political opposition is not rebellion.”
But the two appeals courts — the 9th Circuit in San Francisco and the 7th Circuit in Chicago — handed down opposite decisions.
A panel of the 9th Circuit said judges must defer to the president’s assessment of the danger faced by immigration agents. Applying that standard, the appeals court by a 2-1 vote said the National Guard deployment in Portland may proceed.
But a panel of the 7th Circuit in Chicago agreed with Perry.
“The facts do not justify the President’s actions in Illinois, even giving substantial deference to his assertions,” they said in a 3-0 ruling last week. “Federal facilities, including the processing facility in Broadview, have remained open despite regular demonstrations against the administration’s immigration policies. And though federal officers have encountered sporadic disruptions, they have been quickly contained by local, state, and federal authorities.”
Attorneys for Illinois and Chicago agreed and urged the court to turn down Trump’s appeal.
“There is no basis for claiming the President is ‘unable’ to ‘execute’ federal law in Illinois,” they said. “Federal facilities in Illinois remain open, the individuals who have violated the law by attacking federal authorities have been arrested, and enforcement of immigration law in Illinois has only increased in recent weeks.”
U.S. Solicitor Gen. D. John Sauer, shown at his confirmation hearing in February, said the federal judges in Chicago had no legal or factual basis to block the Trump administration’s deployment of troops.
(Chip Somodevilla / Getty Images)
Trump’s Solicitor Gen. D. John Sauer presented a dramatically different account in his appeal.
“On October 4, the President determined that the situation in Chicago had become unsustainably dangerous for federal agents, who now risk their lives to carry out basic law enforcement functions,” he wrote. “The President deployed the federalized Guardsmen to Illinois to protect federal officers and federal property.”
He disputed the idea that agents faced just peaceful protests.
“On multiple occasions, federal officers have also been hit and punched by protestors at the Broadview facility. The physical altercations became more significant and the clashes more violent as the size of the crowds swelled throughout September,” Sauer wrote. “Rioters have targeted federal officers with fireworks and have thrown bottles, rocks, and tear gas at them. More than 30 [DHS] officers have been injured during the assaults on federal law enforcement at the Broadview facility alone, resulting in multiple hospitalizations.”
He said the judges in Chicago had no legal or factual basis to block the deployment, and he urged the court to cast aside their rulings.