Supreme Court Refuses to Allow Trump to Deploy National Guard in Chicago

President Trump ordered state-based troops to Portland, Ore.; Los Angeles; Washington; and Chicago over the objections of state and local officials.

The Supreme Court on Tuesday refused to allow President Trump to deploy hundreds of National Guard troops in the Chicago area over the objection of Illinois officials, casting doubt on the viability of similar deployments in other American cities.

The justices’ order is preliminary, but it blocks the Trump administration for now from ordering the state-based military force to the Chicago area, where an immigration crackdown led to thousands of arrests and confrontations between residents and federal agents.

In its three-page unsigned ruling against the administration, the court refused to grant the president broad discretion to deploy the military in U.S. cities, citing an 1878 law, which bans the use of the military for domestic policing. It represented a rare departure from recent cases, in which the conservative majority has overwhelmingly sided with Mr. Trump in preliminary tests of presidential power.

At this stage in the litigation, the court said the Trump administration had not shown that the statute at issue “permits the president to federalize the Guard in the exercise of inherent authority to protect federal personnel and property in Illinois.”

Three conservative justices — Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — noted their objections in lengthy dissents, with Justice Alito writing that “the protection of federal officers from potentially lethal attacks should not be thwarted.”

In response to the ruling, Abigail Jackson, a White House spokeswoman, said the president had promised to “work tirelessly to enforce our immigration laws and protect federal personnel from violent rioters.”

She added: “He activated the National Guard to protect federal law enforcement officers, and to ensure rioters did not destroy federal buildings and property. Nothing in today’s ruling detracts from that core agenda.”

Gov. JB Pritzker of Illinois called the ruling a victory for democracy.

“This is an important step in curbing the Trump administration’s consistent abuse of power and slowing Trump’s march toward authoritarianism,” Mr. Pritzker, a Democrat, said in a statement. “The brave men and women of our National Guard should never be used for political theater and deserve to be with their families and communities, especially during the holidays.”

Mayor Brandon Johnson of Chicago said he hoped the Supreme Court’s ruling would shield other cities from unwanted National Guard deployments.

Mr. Trump had also in recent months ordered the National Guard to Portland, Ore.; Los Angeles; and Washington, D.C., also over the objections of state and local leaders. The president’s efforts to use troops for domestic policing prompted legal challenges accusing the Trump administration of exceeding its authority and infringing on traditional state powers over policing. The state-based troops are typically deployed at the request of governors to respond to emergencies in their own states such as natural disasters.

Federal law allows the president to federalize members of the National Guard without the permission of state officials in certain circumstances, notably when there is a “rebellion or danger of a rebellion” against the government or when law enforcement is overwhelmed and cannot execute U.S. law.

Federal courts around the country have generally said the conditions do not exist to allow Mr. Trump to federalize Guard troops. Judges overseeing cases from Los Angeles and Portland halted troop mobilizations. With legal uncertainty hanging over the deployments, the Pentagon decided in November to withdraw hundreds of out-of-state soldiers from Illinois and Oregon, while keeping hundreds of other local troops activated. An appeals court in Washington has separately allowed troops to remain in the nation’s capital while litigation continues, citing the city’s unique status as a federal district.

The court battles came amid street protests against the Guard and violence in Washington, where a targeted attack on two National Guard members on Nov. 26 left one dead and another seriously injured.

At issue in the case in Chicago and a similar matter in Portland are competing accounts of the protests set off by the enforcement sweeps, which the administration characterized as violent and coordinated and which local officials — and some lower court judges — said did not amount to a rebellion.

The court took more than two months to rule on the emergency application. Before issuing its order, the justices took the unusual step in October of asking the parties to address the meaning of a specific key section of the statute. To federalize the National Guard, the president must determine that he is “unable with the regular forces” to execute U.S. laws. The justices asked whether “regular forces” meant the military or civilian law enforcement.

The Trump administration responded that “regular forces” referred to civilian law enforcement such as federal immigration agents. As a result, the administration said it should be permitted to unilaterally deploy the National Guard because federal agents were overwhelmed.

The office of Attorney General Kwame Raoul of Illinois, a Democrat, countered that the term referred to the full-time professional military and said the justices should deny the president’s request on that basis, because he had not tried to use the standing military, nor could he under the law.

In its order on Tuesday, the majority agreed with Illinois officials that the term “regular forces” most likely referred to the U.S. military. To call in the Guard, the president must first determine that he is “unable” with the help of the military to execute U.S. laws — and for that reason, the court said he could likely take such a step only in the rare situations where he would be legally allowed to call in the military in the first place to execute the law.

“Such circumstances are exceptional,” the majority said, because of the Posse Comitatus Act of 1878, which makes it illegal to use federal troops for domestic policing under normal circumstances.

“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 majority wrote in the unsigned order.

Justice Brett M. Kavanaugh wrote separately to say he agreed with the majority’s decision to deny the administration’s request, but on narrower grounds. The majority, he wrote, was too quick to cut off options for the president by suggesting that he could not federalize the National Guard even if he found he was struggling to protect federal personnel and property.

In a 16-page dissent, Justice Alito criticized his colleagues for resolving an issue the parties had not initially explored in their filings.

“There is no basis for rejecting the president’s determination that he was unable to execute the federal immigration laws,” Justice Alito wrote, joined by Justice Thomas.

Justice Gorsuch wrote a separate dissent saying he that would have sided with the administration based on the statements from federal law enforcement officials and that such “weighty questions” deserved a full airing and should not be decided on an emergency basis.

The administration sought to station National Guard troops from Texas and Illinois outside an Immigration and Customs Enforcement processing center in Broadview, Ill., a Chicago suburb where protesters have gathered.

A district court judge and an ideologically diverse appeals court panel in the Chicago litigation blocked the deployment, finding insufficient evidence that the demonstrations had significantly impeded the ability of federal officers to execute immigration laws. They noted that federal facilities had remained open and that immigration arrests and deportations had continued at a rapid clip.

The Trump administration appealed to the Supreme Court and asserted that its decision to federalize and deploy the Guard was not subject to court review. Even if it were, Justice Department lawyers said, the “prolonged, coordinated, violent resistance” by protesters interfered with law enforcement’s ability to do its job and justified the deployment.

D. John Sauer, the solicitor general, told the justices in a court filing that agents could engage in even greater enforcement of immigration laws were they not operating under threat and that the protests posed “unacceptable risks” to their safety.

Lawyers for Illinois told the justices in their brief that an “unnecessary deployment” of troops would “escalate tensions and undermine the ordinary law enforcement activities of state and local entities.”

“No protest activity in Illinois has rendered the president unable to execute federal law,” Mr. Raoul and lawyers for the City of Chicago said in their filing. They noted that the crackdown on immigration has continued with nearly 3,000 people arrested since the end of October.

State and local officials were bolstered by a bipartisan group of more than two dozen former governors and a group of former high-ranking U.S. military leaders, who expressed deep concerns in separate filings to the justices about the president’s actions.

Ernesto Londoño and Zolan Kanno-Youngs contributed reporting.

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