The Trump administration asked the Supreme Court to give “extraordinary deference” to the president in his decision to deploy the National Guard to Chicago, as he seeks to get the justices to lift a block imposed by lower courts on the deployment.
The Justice Department and Illinois officials filed additional briefs to the Supreme Court late Monday on the question of whether “regular forces,” in the language of the law President Donald Trump invoked in his bid to deploy the National Guard to Chicago, includes the military. The law Trump cited, 10 U.S. Code §12406, allows the president to federalize and deploy National Guard troops when the “President is unable with the regular forces to execute the laws of the United States,” among other provisions.
The DOJ argued the military is not included in “regular forces,” saying it only encompasses civilian law enforcement, while also stressing that, regardless of the definition, the president should be given considerable deference in his determinations that the requirements of the statute have been met.
“It would be unprecedented and profoundly ahistorical to require the President to treat the standing military as the first line of defense for ensuring that federal laws can be executed, with the National Guard relegated only to a secondary role despite their comparative advantage,” Solicitor General D. John Sauer said in the brief. “Instead … the ‘regular forces’ for purposes of Section 12406(3) are the civilian law-enforcement officials that regularly ‘execute the laws’ currently being obstructed.”
“Here, those are the DHS agents charged with enforcing federal immigration law and protecting their colleagues, and the President acted well within his discretion in finding that they were unable to do their jobs without the support of the National Guard in light of the violent, organized resistance they are facing,” Sauer continued.
In arguing that the high court should be deferential to the president’s decision, Sauer pointed to the “separation-of-powers and national-security concerns” related to any court review of the federalization and deployment of troops, noting that review should be “highly constrained.” The solicitor general renewed his request that the high court allow the deployment of National Guard troops to go forward.
Illinois officials argued the military is included in the “regular forces” the president may use to execute laws, but pointed to the separate restraints on using the military in domestic settings as to why the military could also not be used in Chicago.
“Because ‘the regular forces’ refers to the full-time, professional military, the President may federalize and deploy the National Guard under section 12406(3) only in circumstances where he is unable to execute federal law with the military. These circumstances are not met here,” Illinois officials said in their brief to the high court. “The President has not attempted to execute the laws with the regular forces in Illinois, let alone shown that he faces an inability to do so. Nor could the President even plausibly argue that the predicate conditions for domestic military deployment are met here.”
“As the Office of Legal Counsel has explained, absent a request for assistance by a State, the President may deploy the military domestically only in the narrowest of circumstances. Not only has the President not attempted to satisfy this exacting standard, he could not do so,” the brief continued.
Both the DOJ and Illinois have until next Monday to file reply briefs, after which the high court is expected to make its decision on the Trump administration’s request to lift a lower court’s block on the Chicago deployment.
SUPREME COURT ZEROES IN ON MEANING OF ‘REGULAR FORCES’ IN CHICAGO NATIONAL GUARD CASE
Trump has attempted to deploy National Guard troops to various Democrat-led cities in recent months to protect federal immigration operations that have faced unruly protests, which have devolved into violence in some instances.
Trump first deployed troops to Los Angeles in June, later ordering the federalization and deployment of troops to Portland and Chicago. All three deployments have been met with lawsuits from each respective state, with only the Los Angeles deployment not currently barred by a federal court order. The Chicago deployment is the first one to reach the Supreme Court’s emergency docket.