WASHINGTON — The Supreme Court ruled against President Trump on Tuesday and said he did not have legal authority to deploy the National Guard in Chicago to protect federal immigration agents.
Acting on a 6-3 vote, the justices denied Trump’s appeal and upheld orders from a federal district judge and the 7th Circuit Court of Appeals that said the president had exaggerated the threat and overstepped his authority.
The decision is a major defeat for Trump and his broad claim that he had the power to deploy military forces in U.S. cities.
In an unsigned order, the court said the Militia Act allows the president to deploy the National Guard only if U.S. military forces were unable to quell violence.
“At this preliminary stage, the Government has failed to identify a source of authority that would allow the military to execute the laws in Illinois. The President has not invoked a statute that provides an exception to the Posse Comitatus Act,” the court said.
Conservative Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch dissented.
The 9th Circuit Court of Appeals had allowed the deployments in Los Angeles and Portland, Ore., after ruling that judges must defer to the president.
But U.S. District Judge Charles Breyer ruled Dec. 10 that the federalized National Guard troops in Los Angeles must be returned to the control of California Gov. Gavin Newsom.
Trump’s lawyers had not claimed in their appeal that the president had the authority to deploy the military for ordinary law enforcement in the city. Instead, they said the Guard troops would be deployed “to protect federal officers and federal property.”
The two sides in the Chicago case, like in Portland, told dramatically different stories about the circumstances leading to Trump’s order.
Democratic officials in Illinois said small groups of protesters objected to the aggressive enforcement tactics used by federal immigration agents. They said police were able to contain the protests, clear the entrances and prevent violence.
By contrast, administration officials described repeated instances of disruption, confrontation and violence in Chicago. They said immigration agents were harassed and blocked from doing their jobs, and they needed the protection the National Guard could supply.
Trump Solicitor Gen. D. John Sauer said the president had the authority to deploy the Guard if agents could not enforce the immigration laws.
“Confronted with intolerable risks of harm to federal agents and coordinated, violent opposition to the enforcement of federal law,” Trump called up the National Guard “to defend federal personnel, property, and functions in the face of ongoing violence,” he told the court in an emergency appeal filed in mid-October.
Illinois state lawyers disputed the administration’s account.
“The evidence shows that 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,” state Solicitor Gen. Jane Elinor Notz said in response to the administration’s appeal.
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.”
The Militia Act of 1903 says the president may call up and deploy the National Guard if he faces an invasion, a rebellion or is “unable with the regular forces to execute the laws of the United States.”
Trump’s lawyers said that referred to police and federal agents. But after taking a closer look, the court concluded it referred to the regular military forces. By that standard, the president’s authority to deploy the National Guard comes only after the military has failed to quell violence.
But on Oct. 29, the justices asked both sides to explain what the law meant when it referred to the “regular forces.”
Until then, both sides had assumed it referred to federal agents and police, not the military.
Trump’s lawyers stuck to their position. They said the law referred to the “civilian forces that regularly execute the laws,” not the military.
If those civilians cannot enforce the law, “there is a strong tradition in this country of favoring the use of the military rather than the standing military to quell domestic disturbances,” they said.
State attorneys for Illinois said the “regular forces” are the “full-time, professional military.” And they said the president could not “even plausibly argue” that the U.S. soldiers were required to enforce the law in Chicago.
California Atty. Gen. Rob Bonta and Newsom filed a brief in the Chicago case that warned of the danger of the president using the military in American cities.
“On June 7, for the first time in our Nation’s history, the President invoked [U.S. law] to federalize a State’s National Guard over the objections of the State’s Governor,” they said.
“President Trump and Defense Secretary Hegseth transferred 4,000 members of California’s National Guard — one in three of the Guard’s total active members — to federal control to serve in a civilian law enforcement role on the streets of Los Angeles and other communities in Southern California.”
That has proved to be “the opening salvo in an effort to transform the role of the military in American society,” they 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,” they said.
