For years, liberal Supreme Court justices have decried the dangers of what is known as the “shadow docket,” but when it suits their short-term political ends, suddenly the docket is their friend.
In a short three-page decision written with little briefing and no oral argument, a 6-3 majority denied the Justice Department’s request to stay a district court restraining order preventing President Donald Trump from deploying the National Guard in Chicago. The court’s holding is tenuously founded, rushed, and will endanger the lives of federal law enforcement officers.
After winning the presidential election by promising thorough enforcement of federal immigration law, Trump launched Operation Midway Blitz on Sept. 6 to speed deportation in and around the Windy City. A key component of this campaign was the Immigration and Customs Enforcement processing center in the suburb of Broadview, Illinois. Within days, the center became a focal point of Democratic Party performance protests against immigration law enforcement. Two candidates vying to replace retiring Rep. Jan Schakowsky (D-IL) filmed themselves obstructing federal officers.
After rioters threw rocks at federal law enforcement agents and tear gas was deployed to protect the officers and maintain access to the building, Trump activated the Illinois National Guard on Oct. 3, against the wishes of Democratic Gov. JB Pritzker (D-IL), an open borders fanatic. He opposes all cooperation with federal immigration law enforcement. Pritzker and Chicago’s socialist mayor, Brandon Johnson, sued in federal court seeking a stay to prevent deployment of the National Guard in Chicago. The U.S. District Court for the Northern District of Illinois granted a stay, and the 7th Circuit Court of Appeals affirmed it. Similar suits have been filed in the District of Columbia, California, Oregon, and Tennessee.
The Justice Department filed an emergency appeal to the Supreme Court on Oct. 17, the court asked for a response on Oct. 20, and opening briefs and reply briefs were due on Nov. 17. Then nothing for over a month until a three-page decision on the late afternoon of the day before Christmas Eve.
There are many problems with the majority’s decision, the biggest being that the holding is based on an argument the plaintiffs did not even make in the lower courts — that the term “regular forces” in the statute authorizing the president to federalize members of the guard, refers only to the military, not federal law enforcement officers. In other words, the court held that even though past presidents have federalized the National Guard on many occasions when federal officials were overwhelmed, the majority now wants us to believe that the National Guard can be activated only after the military itself has proved unable to execute federal laws.
Considering the novelty and far-reaching consequences of such a holding, one might expect the court to have held an extensive briefing on the specific question and oral argument. But no such deliberation happened in this case.
SUBSIDIZING DEMAND WON’T SOLVE AFFORDABILITY
Perversely, the long-term consequence of the majority’s rushed and ill-thought-out holding is that it’s now more likely that the military will be deployed domestically. As Justice Brett Kavanaugh notes in a concurrence, “One apparent ramification of the Court’s opinion is that it could cause the president to use the U.S. military more than the National Guard to protect federal personnel and property in the United States.”
It is clear from this opinion that a growing number of justices are unhappy with the manner in which Trump is enforcing federal immigration law. Disagreements over ICE’s tactics, however, do not justify novel interpretations of settled law that obstruct the protection of federal officers facing potentially lethal attacks.