Supreme Court Won’t Stay Ruling Blocking Trump From Sending National Guard to Illinois
“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 Supreme Court refused to issue a stay requested by President Donald Trump after lower courts blocked him from sending the National Guard to Illinois.
The United States District Court for the Northern District of Illinois and the United States Court of Appeals for the Seventh Circuit issued the restraining orders.
Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented.
Justice Brett Kavanaugh did not join the majority’s explanation.
SCOTUS interpreted §12406(3) as saying the president can activate the National Guard when he cannot with the regular military:
Because the statute requires an assessment of the military’s ability to execute the laws, it likely applies only where the military could legally execute the laws. Such circumstances are exceptional: Under the Posse Comitatus Act, the military is prohibited from “execut[ing] the laws” “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” 18 U. S. C. §1385.
“So before the President can federalize the Guard under §12406(3), he likely must have statutory or constitutional authority to execute the laws with the regular military and must be ‘unable’ with those forces to perform that function,” wrote SCOTUS.
Did Trump do that? According to SCOTUS, no:
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. Instead, he relies on inherent constitutional authority that, according to the Government, allows him to use the military to protect federal personnel and property.
“Thus, at least in this posture, the Government has not carried its burden to show that §12406(3) permits the President to federalize the Guard in the exercise of inherent authority to protect federal personnel and property in Illinois,” concluded the majority. “We need not and do not address the reviewability of findings made by the President under §12406(3) or any other statute.”
Alito, with Thomas, in his dissent, slammed the Court for “unnecessarily” and “unwisely” departing from standard practice.
“It raised an argument that respondents waived below, and it now rules in respondents’ favor on that ground,” wrote Alito. “To make matters worse, the Court reaches out and expresses tentative views on other highly important issues on which there is no relevant judicial precedent and on which we have received scant briefing and no oral argument.”
Alito also said the majority did not explain “why the President’s inherent constitutional authority to protect federal officers and property is not sufficient to justify the use of National Guard members in the relevant area for precisely that purpose.”
Alito said he is “not prepared at this point to express a definite view on these questions.”
I’m pretty sure he’ll have a lot to say when the case lands on his desk.
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Comments
I know it’s happened and it wasn’t yesterday but when exactly did the judges lose the plot on interpretation of the law?
How do you know they have lost it? What obvious error do you find with the reasoning presented here?
If the law says the president can federalize the national guard when he finds himself unable to enforce the law with the regular forces, then it follows that he must first be allowed to use the regular forces for that purpose. If he is legally prohibited from using the regular forces, as is usually the case, then it makes no sense to talk about whether he is physically able to do so.
So to make a case for federalizing the guard he must first show that there is a task that he would be entitled to use regular forces for, and that for some reason he has determined that this isn’t possible, and so he needs the guard to do it instead. In this case that first part is missing.
Because with this court, we’d probably still have segregation, given how they reason.
This is a conservative court. This decision seems conservative, unless you can show how it’s wrong. Absolute presidential power is not a conservative position.
Since when is ignoring federal law and allowing a bunch of traitors to riot and attack the police a conservative decision? Those traitors are going to get people killed.
Their job is to interpret the law. The president has claimed that a specific provision of a specific statute authorizes him to take a specific action. It is far from obvious that his interpretation is correct, and it’s the courts’ duty to express their honest opinion on what the provision means. The consequences of such a decision are none of their business. The law doesn’t change because you don’t like the results.
If conservative, then why are the 2 most conservative not positive about this? We have a mixed SCOTUS, with a couple that we’re never sure where they’re going.
I sort of expected that the Administration would use this case to argue that the Posse Comitatus Act, which was passed to end Union Occupation of the South, violated the Constitution in some way.
Say that to the loved ones, parents, and families who are mourning over two dead national guardsmen in DC. It days like this that makes me hate lawyers and judges.
This has nothing to do with that. There is no possible connection.
I think Mr. Thomas was clear enough.
Well it looks like it is open season on fed buildings and fed personnel in Illinois. One wonders if they would have responded like this if it would mean open season on the Supreme Court buildings and personnel.
Let the insurrection commence…..
I say when they mob goes after the Supremes, nobody should lift a finger to assist them. Screw them
The states, of course, never have a duty to defend the federal government. That’s why DC exists in the first place — because when the mob came for Congress the mayor of Philadelphia and the governor of Pennsylvania both refused to intervene. If a mob attacks the Supreme Court, it will be the federal forces’ duty to protect them. And the law says the US Marshals are directly under the courts’ command.
Time to declare that the city of Chicago is in rebellion against federal law and institute martial law.
The president has no such authority. Martial law can only exist in the USA in a district where the courts are unable to function, due to some disaster. The moment a court opens its doors, martial law becomes void.
And the city is not in rebellion. It is 100% compliant with all relevant laws. It has the constitutional right to refuse cooperation with the federal government.
Sanctuary cities are compliant? Really? The Confederates are attacking or thwarting federal law enforcement.
Yes, sanctuary cities are absolutely in compliance with all federal laws. The constitution guarantees their right to refuse to assist ICE. And that is all they do. They do not obstruct ICE in any way.
By refusing to acknowledge detainers, they obstruct ICE.
Fin.
Pure BS. The current situation has gone far beyond non-cooperation. Organized mobs are attacking ICE and other Federal LEOs attempting to enforce immigration law. Mayors in blue cities and Governors in blue states are telling illegals that city and state LEOs will ‘intervene’ if they are arrested and detained by ICE. They are turning off security cameras expressly to thwart (in some way) immigration enforcement.
Just stop with this claim they *just* refusing to assist ICE. They are actively obstructing immigration enforcement in any way they can.
Treguard:
Refusing to assist is not obstruction. Claiming it is makes you a liar.
Christopher B:
That is an outright lie.
True, but what has that got to do with sanctuary cities? The cities are not participating in or assisting these mobs in any way. They are simply standing aside, as is their constitutional right.
I don’t believe you. Which mayor or governor has said that?
They have every right to turn off their own cameras, or simply to refuse to allow ICE to access them. This in no way violates federal law; indeed Congress cannot make a law against this. Any law that required a city to turn over its camera footage would be automatically invalid, and if the feds tried to enforce such a law they would be common criminals and subject to arrest, since they would be acting outside their authority.
You are defending the proposition that “the city of Chicago is in rebellion against federal law”. The onus is on you to state exactly what law Chicago is violating, and how it’s violating it. In what way is any sanctuary city or state “actively obstructing immigration enforcement”?
The cities are not participating in or assisting these mobs in any way.
They’re not?
Several mayors and state and city reps have been caught IN those mobs screaming along with their deranged leftist brethren.
Many exhort the mobs.
We’ve all watched them do it.
Without people like you trying to tell us that what we’re seeing isn’t actually what we’re seeing.
You are dead wrong. Marshall, Matt Dillon, of Dodge City proves it. He had marshall law for 20 seasons, you fool!
That’s just your spin. The South should have been left alone by your reasoning. After all, the courts were functioning.
There was no martial law in the South. Lincoln’s attempt to impose it in Kentucky, Maryland, and Missouri was unconstitutional and invalid. As was FDR’s imposition of it in Hawaii during WW2.
Look, this is not in any way controversial. It’s firmly established law, since Ex Parte Milligan at the latest:
Why does the court have any say in this manner? The law reads: “Whenever—
…
(3) the President is unable with the regular forces to execute the laws of the United States;
the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws.”
There is nothing about the court in the law. The law doesn’t say “the President may call, if the Supreme Court agrees…”. It says the President (and only the President) may call…”
The people elected the President to make that decision. They didn’t elect the Supreme Court to make that decision and they didn’t elect the Supreme Court to second guess the President’s decision.
If the people don’t like the President’s decision can kick him or his part out of office. If Congress determines the President’s decision constitutes a high crime or misdemeanor, they can impeach him.
But the court has no say in the matter. Why are they saying anything about it?
Excellent.
The constitution says the courts have the judicial authority, which is the authority to say what the law is. The law in this case only lets the president federalize the guard when he is “is unable with the regular forces to execute the laws of the United States”. Whether that is the case is a question of fact, which the courts have the inherent authority to determine, provided that someone with standing brings a complaint before them.
As SCOTUS said here, the president has not shown that there is a task here that he would be legally allowed to use the regular forces for. Therefore there is no need to determine whether there’s some reason he can’t use them and must resort to the guard. He has to do step 1 before he gets to step 2.
Even Alito says he’s undecided about the underlying issue, he just thinks the court shouldn’t have raised this issue because the plaintiffs didn’t raise it below. He says they didn’t do their homework, so it doesn’t matter that the president didn’t do his either.
You’re a troll, but I’ll respond to your post so others can know how wrong you are. No, the courts do not have the authority to say what the law is. Each branch gets to determine what the law says. It’s called Separation of Power. You may have heard of it. It’s in all the law books.
We have three co-equal branches of government and each branch gets to say what the law is. If the courts said what the law is, especially a district court that was created by congress, we wouldn’t have three co-equal branches. Like the pigs in Animal Farm, we would three co-equal branches were one branch, the judicial, was more equal than the others. That’s NOT how the constitution works.
And no, Marbury v Madison did not say the courts could say what the law is. Marbury only said SCOTUS could say if a law were constitutional or not. The decision did not say the court, and only the court, could determine what the law means. Marbury only said SCOTUS could determine if a law were constitutional or not.
Nobody is arguing that the law Trump relied on is unconstitutional. There is a question of whether the president “is unable with the regular forces to execute the laws of the United States”. But that’s for the President to decide, not the courts.
There was an election in November 2024. You may have heard of it. It was in all the papers. And the people of the United States voted for Trump to be the president so that he could make the decision of whether or not he was able execute the laws with regular force. Nobody elected the judges to make that decision and nobody elected the judges to second guess the president.
The people elected the president, and only the president, to make that decision. That’s how the constitution works and that why the people get to vote and that’s why the people, and only the people, get to decide who their president is.
You’re a troll. If you were an honest participant in this forum you would know that I never troll.
And no, the other two branches do not have the power to say what the law is. The constitution explicitly vests the judicial power in the federal courts only. For either of the other branches to interpret the law would breach the separation of powers. See City of Boerne v Flores.
It explicitly said exactly that. “It is emphatically the province and duty of the judicial department to say what the law is.”
Nothing in the law says so. Like all questions of law, it is the courts and only the courts who can say so.
But in this case we don’t even reach that question. As the SCOTUS majority said, and the dissent didn’t disagree, it is obvious that the question of whether the president “is unable with the regular forces to execute the laws of the United States” can only ever arise in a situation where he is legally entitled to use the regular forces for that purpose. If he has no right to use the regular forces to execute the laws, which is the case most of the time, then it’s irrelevant whether he is capable of doing so or not. He can’t call on the national guard to do what the law forbids him to do with the regular forces.
First of all, no, the people did not vote for that, because that is not one of the president’s powers. And it wouldn’t matter if they did vote for it, because, to quote you, “that’s how the constitution works”. The people are bound by the constitution and the laws, and are not entitled to results that the constitution or the laws don’t allow.
Yes. You have 16 posts on this thread alone. But I’m the troll. What a joke.
Yes, you dugong. Or whatever your username is supposed to mean. I am a valuable contributor. You are a troll. I give valid information; you give obvious garbage and lies. When have you ever contributed anything of value in this forum?
How do trolls behave?
When challenged, like this–
Yes, you dugong. Or whatever your username is supposed to mean. I am a valuable contributor. You are a troll. I give valid information; you give obvious garbage and lies. When have you ever contributed anything of value in this forum?
Attacking the username, self aggrandizing, casting aspersions.
The troll said it was leaving and milked such for sympathy and well wishing–can we hurry it on to the next place it’s decided to pollute?
Milhouse eternally and consistently gives us, as ‘correct’ the position that most benefits the left. Can we stop aiding it in it’s mission to demoralize?
Dude, you have huge riots of traitors attacking the ICE and Border Patrol and impeding them from removing criminals. Personally, I think those traitors should be shot the first time they threaten anyone’s safety.
Whenever one of them uses deadly force against ICE agents, the agents can and do use deadly force against them. That’s a fact. It’s completely justified, and if one of them dies it will be well deserved. But it’s irrelevant here.
The only question before SCOTUS was whether to stay the lower court’s injunction against Trump’s invocation of a specific statutory provision. The majority found that he’s unlikely to be interpreting that provision correctly. The minority did not disagree! Its objection to the majority’s reasoning was merely that it hadn’t been raised below. This may be a valid point, but it doesn’t affect the principles involved, which is what we’re discussing.
But all this is still at a preliminary stage. The underlying merits will eventually be sorted out in a final ruling.
Why the hell can’t Trump learn from the democrats? Just let unvetted African refugees cross the border, and transport them on unrecorded flights in the middle of the night to Illinois. Only make sure they are all part of the Dyck Advisory Group.
No worries. Build out holding facilities in States more appreciative of immigration enforcement efforts. Redirect any extra/surge CBP/ICE efforts to vigorous workplace enforcement. Of course without the NG other Federal LEO will unfortunately need to be temporarily tasked to assist. Start with reassignment of US Marshal Service to interior immigration enforcement with primary task of locating, apprehending fugitive Aliens in the interior.
It seems like a straightforward civil rights issue to me. The feds intervene when civil rights are denied by the states.
What civil rights are involved here?
But in any case, the question here is about federalizing the guard on the grounds that he’s unable to execute the laws with regular troops. That was NOT the grounds that Eisenhower invoked, so his case is irrelevant. Trump invoked this clause of this statute, so it has to be interpreted on its own terms. The administration’s position may be correct, but it’s not obviously correct, and at this stage that’s the standard.
It seems the traitors are once again trying to get ICE cops killed.
By the way, this won’t help with Illinois, but if Trump wants to send regular troops to Minneapolis, Mayor Frey just gave him some powerful ammunition. After predicting that someone is likely to be killed, either an ICE agent or someone attacking same, how can he possibly argue that troops aren’t needed? And if for some reason the regular troops aren’t available, then Trump can send in the guard.
“then Trump can send in the guard.”
Correction:
“then Trump can call up the guard.”
The National Guard already exists in Illinois, so it doesn’t have to be ‘sent’.
Oh, I don’t even have a crystal ball and I know how sending regular Army or Marine units to protect Federal authorities in Minn. will be covered. First, the Leftists and media (but I repeat myself) will screech “Posse Comitaus” until our ears bleed (without actually defining what that act means) Then they’ll get a district judge to block the deployment, screech about impeachment for a while, declare the insurrection act as unconstitutional, illegal, and fattening, all while whipping up public opinion in the whole state until they get somebody killed. THEN they’ll go all George Floyd until the arson rate kicks into a bonfire and looting season begins.
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