Supreme Court Set to Rule on National Guard Troops in Chicago

The Supreme Court has a fateful choice this week, arguably as daunting as any in its history. Of the 28 prior applications from Donald Trump’s administration that landed on its shadow docket, Trump v. Illinois is the most important. While supposedly temporary, the outcome could establish the rules for deploying National Guard troops to enforce the law anywhere in the country. 

Here’s the deal. On October 10, Joe Biden-appointed District Judge April Perry in Chicago issued a temporary restraining order preventing the use of federalized National Guard troops in and around Chicago. 

Less than a week later, a Seventh Circuit panel, consisting of one judge appointed by George H.W. Bush, one by Barack Obama, and one by Trump, unanimously kept the critical part of the injunction intact—denying Trump’s request for a “stay.” 

“We conclude that the district court’s factual findings at this preliminary stage were not clearly erroneous, and that the facts do not justify the president’s actions in Illinois … even giving substantial deference to his assertions,” the panel wrote. “The administration remains barred from deploying the National Guard of the United States within Illinois.”

The “clearly erroneous” rule serves as the gold standard that appellate courts rely on to review a lower court’s findings of fact in a civil case. This standard is highly deferential to the fact finder, and an appeal rarely succeeds solely based on challenging a factual determination.

Now, the Justice Department has petitioned the Supreme Court to do just that—not just to stay the district court’s injunction pending appeal, but to issue an immediate “administrative stay “to prevent ongoing and intolerable risks to the lives and safety of federal personnel while this Court considers this application.” The government has not made any factual showing of “federal personnel,” masked or unmasked, killed or seriously injured in Chicago, because there haven’t been any. Trump’s papers are riddled with overstated and overblown claims about the alleged violence and lawlessness in Chicago. Having learned that I had recently been to Liverpool, a Londoner said, “A real Chicago, Liverpool is.” Cities get reputations which die hard to shake, some true, others exaggerated.

Title 10 U.S.C. § 12406 is the federal law that establishes the key legal test. The statute grants the president the authority to activate the National Guard for federal service under specific conditions, including invasion, rebellion, or when the president cannot enforce federal laws using only regular forces. Once federalized under this law, the Guard is no longer under state control. It comes under federal authority and is subject to the Posse Comitatus Act, which prohibits the military from being used for domestic law enforcement.

Judge Perry highlighted the rather significant gap between the “facts” as portrayed by the Trump administration and the detailed affidavits from local and state officials:

 [There is] a troubling trend of Defendants’ declarants equating protests with riots and a lack of appreciation for the wide spectrum that exists between citizens who are observing, questioning, and criticizing their government, and those who are obstructing, assaulting, or doing violence … The lens through which we view the world changes our perception of the events around us. Law enforcement officers who go into an event expecting “a shitshow” are much more likely to experience one than those who go into the event prepared to de-escalate it. Ultimately, this Court must conclude that Defendants’ declarants’ perceptions are not reliable.

With a credibility gap in Trump’s submissions, Judge Perry correctly concluded that the statutory requirements for invoking § 12406 had not been met. As the Seventh Circuit summarized her findings, “There was insufficient evidence of rebellion or a danger of rebellion, nor was there enough evidence that the President was unable with the regular forces to enforce the laws of the United States.”

Though the Seventh Circuit rejected most of the government’s appeal, it agreed with Trump to the extent of issuing its own administrative stay of Judge Perry’s order insofar as it barred the federalization of National Guard troops; but, most importantly, it left the lower court order intact regarding their deployment.

Regarding the merits, the panel upheld the Ninth Circuit’s earlier ruling in Newsom v. Trump that ‘the President should be granted a great level of deference’ on whether one of the statutory predicates exists. However, it also concluded that the Trump administration was unlikely to succeed, mainly because the district court’s key factual findings—that Trump’s submissions lacked credibility—were not “clearly erroneous.” 

Based on those findings, they wrote, “We see insufficient evidence of a rebellion or danger of rebellion in Illinois. The 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.” And most telling:

There is insufficient evidence that protest activity in Illinois has significantly impeded the ability of federal officers to execute federal immigration laws. 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. At the same time, immigration arrests and deportations have proceeded apace in Illinois over the past year, and the administration has been proclaiming the success of its current efforts to enforce immigration laws in the Chicago area.

The Seventh Circuit disagreed with Judge Perry only to the extent that she prohibited blocking the mobilization of federalized National Guard troops. As it explained, “we conclude that the harm to plaintiffs of permitting Guard troops to remain temporarily under federal control, without deploying, as this case further progresses appears to be relatively minimal.”

In 1956, Justice Hugo Black elaborated the lesson of history drawn from the Founders’ era:

The Founders envisioned the army as a necessary institution, but one dangerous to liberty if not confined within its essential bounds. Their fears were rooted in history … [but] the generation that adopted the Constitution did not distrust the military because of history alone. Within their own lives, they had seen royal governors sometimes resort to military rule. British troops were quartered in Boston from 1768 until the outbreak of the Revolutionary War to support unpopular royal governors and intimidate the local populace.

As for why Trump v. Illinois presents the Court with an inflection point, we might say what it would mean if the full Court were to grant Trump’s request.

• It means the Court clears the way for Trump to send troops anywhere in the country to strengthen immigration enforcement, and it suggests that federalized National Guard troops could start accompanying ICE officers on immigration raids—even if they’re not doing the arrests themselves. If this doesn’t resemble Germany in the 1930s, it certainly comes close.
• Since we all know, face it, summary dispositions without opinion on the shadow docket become the law of the land, at least for the foreseeable future. If the Court grants Trump relief in Chicago, what will stop Trump from deploying national guardsmen nationwide to supplement the ICE program in enforcing immigration laws? And then, based on some pretext that there is a rebellion, posting troops at select polling places nationwide to intimidate voters during the midterm elections? 

As Stephen Vladeck wrote this month, the fundamental questions in these cases are not about the federal government’s legal authorities but the facts. Appellate courts, bound by the “clearly erroneous” rule, are supposed to review, not find facts. If it sides with Trump, the Court would endorse pretextual domestic military deployments.

Mark Twain famously said, “History may not repeat itself, but it often rhymes.” In Korematsu v. United States, the Court accepted representations from the executive branch that later proved false. Three justices dissented, with one calling the decision “legalization of racism.” The Court authorized the government to intern roughly 120,000 people of Japanese ancestry, most of whom were U.S. citizens. This decision is regarded as one of the darkest moments in the Court’s history. Let this shame not be eclipsed by Trump v. Illinois.

A ruling is expected as early as this week.