One president, 29 emergencies and a Supreme Court that won't say no

President Donald Trump has created a whirlwind of litigation on the scope of presidential power to federalize and deploy federal National Guard troops in California, Oregon and Illinois to combat people he blithely labels as terrorists. State and local officials have filed lawsuits in those states challenging Trump's actions with mixed results.

In the lead case, Trump has asked the Supreme Court for an emergency stay of the temporary restraining order (TRO) issued by the federal district court in Illinois (Trump v. Illinois (No. 25A433)). It is his 29th  request for an emergency stay from the Supreme Court during the last 10 months, which is stunningly excessive. According to the New York Times, President Barack Obama, for example, asked the Supreme Court for emergency relief three times in eight years.

Although Trump's factual and legal claims appear dubious, the Supreme Court will be the ultimate arbiter of whether Trump has the inherent power under Article II to mobilize and deploy the National Guard over the Tenth Amendment objection of the states. It also will determine whether Trump has the unreviewable say on whether the requirements of federal statutory law have been met.

The common thread to the mobilization and deployment cases is the claim that protests outside the federal facilities constitute an armed confrontation and rebellion. The federal facilities, Trump argues, have come under coordinated assaults by violent groups intent on obstructing lawful federal enforcement. These groups, he maintains without proof, are actively aligned with designated domestic terrorist organizations.

The Militia Act of 1903 authorizes the president to call into federal service members and units of the National Guard of any state in such numbers as he considers necessary, but only if certain requirements are satisfied (10 U.S.C. § 12406). The debatable question is how much deference to afford Trump's determinations that the requirements have been met.

In the Illinois case, the federal district court (Judge April Perry) issued a TRO barring Trump's federalization of both the Illinois and Texas National Guard and its deployment in and around Chicago (Illinois v. Trump, 25-cv-12174 (Oct. 9, 2025)). It concluded that the alleged statutory predicates of rebellion or danger of rebellion were "not reliable." Federal grand juries have refused to return indictments, which equates to a finding of a lack of probable cause that any crime occurred. The court also noted the "troubling trend" of equating lawful protests with riots. In the meantime, Trump's appeal of the TRO to the Seventh Circuit (25-2798 (Oct. 11) and 25-2798 (Oct. 16)) is also pending, with briefs due on Nov. 19. It has temporarily allowed the federalization of the National Guard but blocked its deployment.

Trump generally argues that his decision to call up and deploy the National Guard is exclusively within the authority of the President under Article II, Section 2, Clause 1 -- As the commander and chief "the President's decision whether to federalize the Guard is not subject to second-guessing by the State of Illinois or a federal district court."   

This claim relies heavily on the Supreme Court decision in Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827). Jacob Mott failed to comply with the lawful order to muster into the militia during the War of 1812. In 1814, Major General Morgan Lewis ordered that any citizen failing to muster in response to President James Madison's calling up of the New York militia should be court-martialed. Mott was court-martialed and fined $96, which he failed to pay. As a result, Michael Martin, the deputy marshal, seized his property (an "old gray mare") and Mott responded by bringing a replevin action to recover his property.

Mott argued that the court martial was invalid because he had not violated lawful orders. The case ultimately found its way to the Supreme Court where Justice Joseph Story wrote: "We are all of the opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons."   

The United States was at war with the British. The factual predicate for the exigency was clearly established -- the British troops burned the White House, Capitol, Library of Congress and other buildings in Washington, D.C. The discretionary decision by Madison to call up and direct the militia was affirmed as lawful by the Supreme Court.

The Illinois district court found that the facts, applicable statute, and posture of the current case to be vastly different from Mott and not broadly applicable today. The country is not at war with a foreign adversary. Moreover, Mott involved a different statute and context, disobeying orders to muster and the civil claim of replevin.

The Constitution vests Congress, not the president, with the power to "call forth" the militia to execute federal laws, suppress insurrections, and repel invasions (Art I, § 8, Cl. 15) and to provide for the "organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States" (Art I, § 8, Cl. 16). Congress has delegated this power to the president by federal statute (10 U.S.C. § 12406).

Trump makes the separate claim that he has the power to act under federal law: "Section 12406 makes clear that Congress has granted the authority to decide whether the statutory prerequisites are satisfied exclusively to the President." Section 12406 permits the president to federalize the National Guard whenever one of the following enumerated conditions is met -- "if there is rebellion or danger of a rebellion against the authority of the government of the United States" or "the President is unable with the regular forces to execute the laws of the United States." 

The statute does not give the president the unreviewable authority to determine whether those conditions have been met. It is the responsibility of the judiciary to determine whether the factual predicates, if true, constitute a rebellion or whether the president is unable to execute federal law.

Finally, Trump makes the claim that the balance of equities weighs strongly in favor of the federal government. "Indeed, it is difficult to imagine how deploying the National Guard to protect federal personnel and property, rather than leaving them federalized but non deployable, could cause irreparable harm to anyone." But a strong public interest exists in having only well-trained law enforcement officers deployed in their communities. Avoiding unnecessary shows of military force, which can trigger unrest when state and local police are available, shifts the balance of equities in favor of restraint and is not "difficult to imagine."

Trump has been using the emergency docket to expand the powers of the presidency and the Supreme Court has been cooperating by not explaining their decisions. This has created confusion, which appears to be Trump's goal. Hopefully, the Court will give clear guidance on these questions and not merely grant a stay without a reasoned explanation.

In the interim, Trump will continue to pursue the mass removal of noncitizens, pressuring states and municipalities to cooperate in federal enforcement, and attacking opponents he labels terrorists. If "drug smugglers" on the high seas can be killed on presidential command, anyone identified by Trump as a terrorist may be just as vulnerable.