The Supreme Court on Oct. 29, 2024. (Photo by Jane Norman/States Newsroom)
Every state with either a Democratic governor, attorney general or both signed a brief to the U.S. Supreme Court, asking the justices to side with Illinois and Chicago to continue blocking President Donald Trump’s proposed deployment of National Guard troops to Chicago.
In an amicus brief filed Monday in the Trump administration’s appeal to overturn lower courts’ rulings that Trump lacks the legal authority to send troops to Chicago, 24 Democratic officials argued that restraining presidential power to mobilize National Guard troops was an essential constitutional safeguard.
“The President has asserted a boundless power far out of step with our Nation’s laws and tradition: the power to federalize and deploy unlimited numbers of National Guard troops at his whim and without any judicial review,” they wrote. “This Court should not endorse such a power.”
State National Guard units are generally under the control of the state’s governor. Federal law does allow the president to federalize state National Guard units in rare cases of invasion, insurrection or when the state is unable to enforce federal laws.
The Trump administration has argued that circumstances in Chicago constitute both the threat of an insurrection and the inability of local police to enforce federal law.
Illinois Gov. JB Pritzker and Chicago Mayor Brandon Johnson have argued that lower courts correctly decided that those circumstances were not met in Chicago and Trump may therefore not deploy troops to the city.
Maryland Attorney General Anthony G. Brown and Washington state Attorney General Nicholas W. Brown led the brief.
Attorneys general in Arizona, Colorado, Connecticut, Delaware, Hawai‘i, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Wisconsin and the District of Columbia also signed on, as did the governors of Kansas, Kentucky and Pennsylvania.
California Gov. Gavin Newsom, a Democrat whose state led its own lawsuit against Trump’s deployment of National Guard troops and U.S. Marines to Los Angeles, filed a separate amicus brief Monday.
The U.S. Department of Justice did not respond to a request for comment Tuesday.
Tussle over Chicago
The case stems from Trump’s order to federalize Illinois National Guard troops and deploy them to Chicago.
Trump has said the move is needed to control crime that threatens federal personnel and buildings. Pritzker and Johnson, as well as the state officials in Monday’s brief, say the use of military forces to respond to routine crime is a gross violation of the U.S. Constitution’s balance of powers.
The states, even where Trump has not threatened to send troops, are in danger of losing the power granted to them by the Constitution, the officials wrote.
“President Trump’s invocation of 10 U.S.C. § 12406 to deploy armed, federalized National Guard soldiers and entangle them in everyday civilian law enforcement activities like responding to small-scale protests—over the objection of Illinois’s Governor—is a stunning break from law and tradition,” they wrote, referring to the law outlining the conditions under which a president may federalize a state National Guard.
High court appeal
U.S. Solicitor General D. John Sauer filed the Trump administration emergency motion for a stay Friday. He argued that an injunction from Illinois federal court on Oct. 7 wrongfully decided the scope of the president’s power to control National Guard units.
Sauer argued for a broader interpretation of Trump’s authority, saying the president alone could determine if the conditions for federalizing National Guard units had been met.
“The district court’s injunction impermissibly substitutes the court’s own judgment for the President’s on military matters and rests on a construction of Section 12406 that would render the statute a virtual nullity,” Sauer wrote in the Oct. 17 motion. “The injunction improperly impinges on the President’s authority.”
The Democratic officials on Monday called the assertion of such authority an overreach of presidential power.
“Allowing the President to commandeer state National Guards and use them at his whim would fundamentally upset the balance of power between States and the federal government,” they wrote. “This Court should decline Defendants’ invitation to take such an unprecedented and drastic step.”
Military personnel enter Broadview ICE facility Thursday | Photo by Andrew Adams/Capitol News Illinois
CHICAGO — A federal judge on Thursday temporarily blocked President Donald Trump from deploying 500 National Guard troops to Chicago as the administration’s immigration enforcement actions have intensified — along with protests against them.
U.S. District Judge April Perry noted the ongoing protests outside a local immigration processing center have never exceeded 200 demonstrators. She said the demonstrations fall far short of the high legal bar needed to be characterized as a “rebellion” that would allow the administration to take control of the Illinois National Guard and deploy troops from Texas and California to Chicago.
“I have seen no credible evidence that there is a danger of rebellion in the state of Illinois,” the judge said as she issued her oral ruling late Thursday afternoon.
While Perry acknowledged protesters have assaulted immigration agents and damaged federal property — namely vehicles belonging to U.S. Immigration and Customs Enforcement and U.S. Border Patrol — the judge said there was far more evidence that the feds actually escalated or even caused clashes with activists.
More than a dozen protestors have been arrested in recent weeks outside an ICE processing center in the suburb of Broadview, approximately 13 miles directly west of Thursday’s hearing in Chicago’s Dirksen Federal Courthouse.
The ICE facility has been the epicenter of protests against the Trump administration’s ramped-up immigration enforcement actions in the last month. The Department of Homeland Security claims “Operation Midway Blitz” in Chicago and its suburbs has resulted in the arrests of more than 1,000 people.
DHS claims the federal troop deployment is necessary to protect the facility, along with federal immigration agents working in and around it.
But the judge agreed with arguments put forth by the state and city of Chicago in its lawsuit that deploying the National Guard was more likely to lead to civil unrest than be a force for peacekeeping, as guardsmen are “not trained in de-escalation.” Throughout nearly three hours of arguments in her courtroom, she continually pushed back on U.S. Department of Justice lawyers’ claims that Chicago-area immigration protests had grown out of control due to violent agitators.
Perry noted that for 19 years, weekly prayer vigils outside the Broadview facility occurred without incident. But she said most of the evidence pointed to federal agents — not protesters — as the catalysts for violence. She recounted recent incidents in which agents used chemical agents and nonlethal rounds against crowds “as small as 10 people.”
Deploying the guard “will only add fuel to the fire that the defendants themselves have started,” she said.
The judge will publish a written decision on Friday. But after giving her a verbal ruling Thursday, she agreed to use the widest possible wording to prevent the Trump administration from deploying troops from other states while her 14-day temporary restraining order remains in place.
For now, the feds won’t be able to order troops to perform their “federal protective missions” anywhere in Illinois.
That includes members of the Texas National Guard, who made their first appearance Thursday morning at the Broadview facility.
Texas Guard is already here
The Trump administration dispatched National Guard troops to Illinois from Texas earlier this week, even after the judge on Monday urged them to wait for Thursday’s hearing. Fourteen members of California’s National Guard were also sent to the Chicago area in order to train Illinois troops. Eric Wells, a top lawyer for Illinois Attorney General Kwame Raoul, argued the move was a harbinger of “wanton tyranny.”
“I can only say that what I think what we heard from the United States Department of Justice was startling, unbounded, limitless and not in accord with our system of ordered liberty of federalism, of a constitutional structure that has protected this nation and allowed it to prosper for hundreds of years,” Wells said as he began his final arguments.
Raoul sat front-row throughout Thursday’s arguments in the courtroom and grew emotional while answering reporter questions after Perry’s ruling. He called the attorneys who worked on the case “true American heroes.”
“This is an important decision not just for the state of Illinois but for the entire country,” he said. “The question of state sovereignty was addressed in this decision. The question of whether or not the president of the United States should have unfettered authority to militarize our cities was answered today.”
Illinois Attorney General Kwame Raoul speaks to reporters on Thursday after a federal judge blocked the Trump administration from deploying the National Guard to Chicago. (Capitol News Illinois photo by Hannah Meisel)
Trump administration to appeal
The Trump administration is poised to appeal Perry’s decision, just as it challenged a decision from Trump-appointed federal judge in Oregon who also blocked the National Guard’s deployment to Portland over the weekend. The 9th Circuit Court of Appeals on Thursday heard the case, during which two other Trump-appointed judges appeared amenable to arguments that a president should be given deference in matters of national security, according to reporting from POLITICO.
DOJ lawyer Eric Hamilton also pushed for deference in his arguments to Perry Thursday. He said it wasn’t up to the judge to decide whether there was a risk of rebellion or even whether Trump was “relying on completely invalid evidence,” as Perry put it.
Hamilton painted a much darker picture of the protests in Broadview and Chicago, claiming that “sustained violence” in recent weeks was preventing DHS from “executing federal law.”
“They are not protesters,” he said. “They are the violent resistance of duly enacted immigration laws.”
Hamilton said dozens of agents have been “injured, hit, punched” — one even had his beard ripped off by a protester, he alleged.
“How — how did that happen?” Perry asked at one point. “Like an entire … not pieces of hair? His whole beard?”
“I believe that’s what the declaration says,” Hamilton said, referring to a filing in the case.
‘DHS’ version of events are unreliable’
In delivering her ruling, Perry said the DOJ’s arguments in the National Guard case seemed to add to “a growing body of evidence that DHS’ version of events are unreliable.” She said the administration’s characterization of immigration protests “cannot be aligned” with the accounts of local and state law enforcement submitted in legal filings.
For example, Hamilton referenced recent arrests of protesters, including a couple who were arrested for allegedly assaulting officers and happened to be carrying their licensed concealed weapons. But a federal grand jury this week declined to indict the couple, along with a third person, all of whom had already been released on bond.
Over the weekend, a Customs and Border Protection agent shot a woman in Brighton Park on Chicago’s Southwest Side during an altercation with agents. DHS officials allege the woman was one of 10 drivers who were following federal agents’ vehicles Saturday morning and eventually boxed them in.
But her attorney told a federal judge this week that body-camera footage contradicts that narrative and shows an officer shouting “do something b—-,” according to reporting from the Chicago Sun-Times. She and another driver were arrested over the weekend but the judge ordered them released.
Hamilton also referred to the incident several times, claiming drivers were “ramming” into immigration vehicles.
None of the other protesters arrested by either federal or local authorities in recent weeks remain in detention, with most arrestees handcuffed and immediately released after receiving a citation.
Federal prosecutors on Thursday dropped charges against one of the arrested protesters, one day after a federal judge granted a temporary restraining order against ICE barring agents from arresting peaceful protesters or journalists covering immigration demonstrations. It also bars federal agents from using harsh crowd control methods such as tear gas and other non-lethal weapons and ammunition.
The judge pointed out the Trump administration activated the National Guard the same weekend a federal immigration official stationed in Broadview described as a “great weekend” in an internal email late Sunday night. The official said the relative calm was due to the Illinois State Police, which last week formalized cooperation with Broadview Police and the Cook County Sheriff’s Office into a “unified command” and put up fencing around the building.
Perry cited the dropped charges for protesters this week, the First Amendment restraining order won by journalism groups, and another federal judge’s ruling Tuesday that ICE violated a consent decree restricting warrantless arrests.
“So to summarize, in the last 48 hours, in four separate unrelated legal decisions from four different neutral parties, they all cast doubt on DHS’ version of events,” the judge said.
Capitol News Illinois is a nonprofit, nonpartisan news service that distributes state government coverage to hundreds of news outlets statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.
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