The Supreme Court on Oct. 29, 2024. (Photo by Jane Norman/States Newsroom)
Every state with either a Democratic governor, attorney general or both signed a brief to the U.S. Supreme Court, asking the justices to side with Illinois and Chicago to continue blocking President Donald Trump’s proposed deployment of National Guard troops to Chicago.
In an amicus brief filed Monday in the Trump administration’s appeal to overturn lower courts’ rulings that Trump lacks the legal authority to send troops to Chicago, 24 Democratic officials argued that restraining presidential power to mobilize National Guard troops was an essential constitutional safeguard.
“The President has asserted a boundless power far out of step with our Nation’s laws and tradition: the power to federalize and deploy unlimited numbers of National Guard troops at his whim and without any judicial review,” they wrote. “This Court should not endorse such a power.”
State National Guard units are generally under the control of the state’s governor. Federal law does allow the president to federalize state National Guard units in rare cases of invasion, insurrection or when the state is unable to enforce federal laws.
The Trump administration has argued that circumstances in Chicago constitute both the threat of an insurrection and the inability of local police to enforce federal law.
Illinois Gov. JB Pritzker and Chicago Mayor Brandon Johnson have argued that lower courts correctly decided that those circumstances were not met in Chicago and Trump may therefore not deploy troops to the city.
Maryland Attorney General Anthony G. Brown and Washington state Attorney General Nicholas W. Brown led the brief.
Attorneys general in Arizona, Colorado, Connecticut, Delaware, Hawai‘i, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Wisconsin and the District of Columbia also signed on, as did the governors of Kansas, Kentucky and Pennsylvania.
California Gov. Gavin Newsom, a Democrat whose state led its own lawsuit against Trump’s deployment of National Guard troops and U.S. Marines to Los Angeles, filed a separate amicus brief Monday.
The U.S. Department of Justice did not respond to a request for comment Tuesday.
Tussle over Chicago
The case stems from Trump’s order to federalize Illinois National Guard troops and deploy them to Chicago.
Trump has said the move is needed to control crime that threatens federal personnel and buildings. Pritzker and Johnson, as well as the state officials in Monday’s brief, say the use of military forces to respond to routine crime is a gross violation of the U.S. Constitution’s balance of powers.
The states, even where Trump has not threatened to send troops, are in danger of losing the power granted to them by the Constitution, the officials wrote.
“President Trump’s invocation of 10 U.S.C. § 12406 to deploy armed, federalized National Guard soldiers and entangle them in everyday civilian law enforcement activities like responding to small-scale protests—over the objection of Illinois’s Governor—is a stunning break from law and tradition,” they wrote, referring to the law outlining the conditions under which a president may federalize a state National Guard.
High court appeal
U.S. Solicitor General D. John Sauer filed the Trump administration emergency motion for a stay Friday. He argued that an injunction from Illinois federal court on Oct. 7 wrongfully decided the scope of the president’s power to control National Guard units.
Sauer argued for a broader interpretation of Trump’s authority, saying the president alone could determine if the conditions for federalizing National Guard units had been met.
“The district court’s injunction impermissibly substitutes the court’s own judgment for the President’s on military matters and rests on a construction of Section 12406 that would render the statute a virtual nullity,” Sauer wrote in the Oct. 17 motion. “The injunction improperly impinges on the President’s authority.”
The Democratic officials on Monday called the assertion of such authority an overreach of presidential power.
“Allowing the President to commandeer state National Guards and use them at his whim would fundamentally upset the balance of power between States and the federal government,” they wrote. “This Court should decline Defendants’ invitation to take such an unprecedented and drastic step.”
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