A major and unexpected setback for the government of Donald Trump. The Supreme Court on Tuesday blocked the president’s attempt to deploy the National Guard to Chicago to support his offensive against immigration there. It’s the first time the justices — who have handed victory after victory to the White House in recent months — have ruled on the Republican’s efforts to use troops to enforce immigration laws and combat what he sees as crime in big, Democratic-governed cities.
The Supreme Court has preliminarily and temporarily rejected the Trump administration’s emergency request to overturn a federal district judge’s ruling that blocked the deployment of hundreds of troops to Chicago. An appeals court refused to intervene after the Justice Department appealed, and it took High Court judges more than two months to issue a decision.
“At this preliminary stage, the government has failed to identify a source of authority for the armed forces to execute the laws of Illinois,” the Court found. “The President has not invoked any law establishing an exception to the Posse Comitatus Act,” the judges added, referring to legislation, signed in 1878, which prohibits troops from performing law enforcement functions.
Federal law contains several exceptions to Posse Comitatus. For example, the president can federalize to the National Guard, that is to say taking control of the troops of a state, which are normally under the command of the governor, in the event of rebellion against the government or when the latter can no longer enforce the laws with the “regular forces”. This second exception is the one invoked by the president to justify the deployment in Chicago.
However, the Supreme Court considers that “at least at this stage of the procedure, the Government has not fulfilled its burden of demonstrating” that this exception applies in the present case. The judges consider that the “regular forces” mentioned in the law “probably refer to the regular forces of the United States army”. Therefore, before the President can federalize to the Guard in accordance with what the law establishes, “must probably have the legal or constitutional authority to execute the laws with regular military forces and, moreover, be ‘incapable’ of fulfilling this function with said forces”, say the judges.
The decision divided the court’s six conservative justices, three in the majority and three dissenting, while the three liberal justices were part of the majority. “I strongly disagree with the manner in which the court resolved this claim,” Justice Samuel Alito wrote in a dissenting opinion. “There is no reason to reject the President’s determination that he failed to enforce federal immigration laws using the civilian law enforcement resources available to him,” he added.
Early last October, Trump ordered hundreds of National Guard troops from Illinois and Texas to Chicago to protect federal personnel and assets, particularly Immigration and Customs Enforcement (ICE) and Border Patrol agents and facilities, which launched a large-scale operation in September to arrest migrants in the city. The operations sparked citizen protests.
The president has attempted to deploy the National Guard in several cities governed by the Democratic Party, always under the pretext that these cities are plagued by crime and violence. This is despite the fact that the numbers show otherwise and despite the fact that local and state officials have opposed it.
Last summer, the Republican began sending troops to Los Angeles. He also tried to send them to Portland, Oregon, but a federal judge permanently arrested him in November; in Memphis, Tennessee, where they are expected to patrol until March while the appeals court considers the state’s appeal of a Nashville judge’s decision to temporarily block the deployment; and Washington DC, where they have been since August. In the capital, two members of the armed forces were shot dead at the end of November; one soldier died and the second was seriously injured.
The Supreme Court’s decision Tuesday is likely to strengthen similar challenges filed against National Guard deployments in other cities, as the decision limits the president’s ability to justify them.
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