The Supreme Court denied the Trump administration’s request to lift a lower court order blocking the federalization and deployment of National Guard troops to Chicago, marking a rare loss for President Donald Trump on the high court’s emergency docket.
In a 6-3 ruling, the high court said the administration failed to show that federal law “permits the President to federalize the Guard in the exercise of inherent authority to protect federal personnel and property in Illinois.”
The relevant federal statute says a president may federalize and deploy the National Guard in instances when “the President is unable with the regular forces to execute the laws of the United States.” The majority found that “regular forces,” as defined in the statute, includes the military, meaning the administration would have to prove the military was unable to execute federal law before deploying the National Guard.
The majority further ruled that the administration “has failed to identify a source of authority that would allow the military to execute the laws in Illinois.”
“We need not and do not address the reviewability of findings made by the President under [the applicable law] or any other statute. The application for stay is denied,” the unsigned majority said.
Justice Brett Kavanaugh issued a concurring opinion, saying he agreed that “regular forces” likely includes the military, but disagreed with the majority going beyond that question to deny the emergency petition.
“In sum, I vote to deny the application but would do so on narrow grounds and, at this time, would not reach the broader statutory issues addressed by the Court,” Kavanaugh said.
Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch all dissented from the majority ruling. Alito wrote a lengthy dissent, joined by Thomas, in which he said the majority went beyond the questions the parties chose to present to the high court.
“In this case, the Court has unnecessarily and unwisely departed from standard practice. It raised an argument that respondents waived below, and it now rules in respondents’ favor on that ground. 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 said.
Alito also argued that the majority failed “to 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.”
“I am not prepared at this point to express a definite view on these questions, but I have serious doubts about the correctness of the Court’s views. And I strongly disagree with the manner in which the Court has disposed of this application,” Alito added.
In his dissent, Gorsuch said he would decide this emergency application narrowly, as opposed to the broader ruling by the majority, adding that the “declarations federal law enforcement officials submitted below support the grant of a stay.” He also noted that the more complex questions about the federal statute should be reserved for a full merits briefing and arguments on the matter, rather than via the emergency docket.
TRUMP FACES MORE TOUGH DECISIONS AT THE SUPREME COURT AFTER WINNING STREAK SNAPS
The loss for the Trump administration is a significant setback for its efforts to use the National Guard to protect federal officers and assets amid unruly protests against federal immigration enforcement operations in cities such as Chicago, Portland, and Los Angeles. The Tuesday order by the high court is expected to have ramifications in other federal court cases regarding the deployments in Los Angeles and Portland.
While the Trump administration has had an overwhelmingly successful year on the emergency docket, the past week has seen two key losses after a roughly seven-month winning streak.