The National Guard isn't a political tool: Why Illinois should resist

President Donald Trump has authorized the use of the National Guard to protect federal property and personnel in Illinois and elsewhere. Using the Guard for local policing in states run by Democrats and over their objection has led to ongoing community protests, sporadic violence and litigation. It also arguably violates the 10th Amendment that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The controversy is pending before the Supreme Court in Trump v. Illinois (No. 25A433). In the application for a stay blocking the use of the National Guard by the lower courts, Trump makes two arguments: 1) the decision to call up the Guard is committed exclusively to the president, and 2) the invocation of federal law (10 U.S.C. § 12406) is lawful whenever "there is a rebellion or danger of rebellion against the authority of the government" or "the President is unable with the regular forces to execute the laws of the United States."  

On Oct. 29, Justice Amy Coney Barrett referred Trump's application to the full court and directed the parties to file letter briefs addressing: Whether the term "regular forces" refers to the U.S. military, and if so, how that interpretation affects the case. Briefs were due Nov. 10 and reply briefs are due Nov. 17. To grant the stay, a majority of the full court must vote in favor of it.

On Oct. 4, Trump issued the presidential memorandum "Department of War Security for the Protection of Federal Personnel and Property in Illinois." He cited efforts to disrupt the enforcement of federal law by violent groups impeding the deportation and removal of criminal aliens through violent demonstrations, intimidation and sabotage of federal operations.

Trump additionally said, "I have further determined that the regular forces of the United States are not sufficient to ensure the laws of the United States are faithfully executed, including in Chicago." The regular forces Trump referred to were personnel working within civilian federal law enforcement - the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE).

But that is not the common understanding of the term. "Regular forces" refers to military personnel serving in the Armed Services within the Department of Defense, such as those serving in the army. The district court (Judge April Perry) said, "I have seen no credible evidence that there is a danger of rebellion in the state of Illinois." She also found that Trump was mistaken about the meaning of regular forces. The president could call forth the National Guard to help execute the laws only if the regular military forces are unable to do so. This error, the district court found, was a sufficient basis for concluding that the President did not properly call forth the National Guard. The court of appeals did not consider the issue, so Justice Barrett asked for a briefing on it.

The claims that Congress has conferred unreviewable discretion upon the president and that "a rebellion or danger of rebellion against the Government of the United States" exists in the Chicago area are not persuasive. Nothing in the text of Section 12406 makes the president the sole judge of whether the preconditions exist. No basis exists for assuming that Congress has stripped the courts of their authority to answer such questions.

The claim that a rebellion or danger of a rebellion exists is belied by the facts. Trump would have the American public believe Chicago is rife with violence, ransacked by rioters and under attack by agitators, but that simply is not accurate.

No matter the outcome before the Supreme Court, Trump has a Plan B -- the Insurrection Act of 1807 (10 U.S.C. §§ 251-255), which he has often threatened to invoke. It allows the president to use the military during an insurrection or civil disturbance and constitutes an exception to the Posse Comitatus Act (18 U.S.C. § 1385). The broadest provision allows the president to deploy the military to a state if a situation there is causing some people to be deprived of their constitutional rights, and if state or local authorities aren't able to enforce those rights (10 U.S.C. § 253).

Context is important. The last time it was unilaterally invoked over the state's wishes was by President Lyndon B. Johnson in 1965. Johnson used the law to provide protection for civil rights activists marching from Selma to Montgomery, Alabama, which is a far cry from the claim that a rebellion or invasion currently exists in the Chicago environs.

On Jan. 6, 2021, the U.S. Capitol was attacked by rioters attempting to stop Congress from certifying the 2020 presidential election. The attack resulted in violence, property damage, multiple deaths and constituted a direct assault to our democracy. Yet, Trump failed to invoke the Insurrection Act. But he went further by pardoning rioters convicted of insurrection. Many see this as the hallmark of hypocrisy.

Having lived through the Boston Massacre, the founders rightly feared the use of the military for purposes of domestic law enforcement. Trump has proposed using "dangerous cities as the training grounds for our military," which is right out of the authoritarian playbook. More than two dozen former governors and a group of former high-ranking military leaders have expressed serious doubts about using the military to assist with immigration enforcement. The military is trained to kill adversaries, not to do civilian law enforcement.