CREATORS
November 4, 2025
The U.S.
Supreme Court has agreed to hear a significant case for the future of America's
democracy. In the case of Trump v. Illinois, the Court will decide whether the
president can federalize and deploy the National Guard in Illinois and Chicago.
Early last
month, officials in Illinois, particularly in Chicago, filed a federal lawsuit
to block the federal government's plan to deploy National Guard troops within
the state. A federal district court judge in the Northern District of Illinois
issued a temporary restraining order on Oct. 9, 2025, prohibiting the Trump
administration from federalizing and deploying the National Guard within
Illinois.
In Los
Angeles and Portland, federal district judges issued similar orders blocking
troop deployment after determining that protests did not rise to the level of a
rebellion and that local law enforcement officials currently were capable of
enforcing the law, but the U.S. Court of Appeals for the Ninth Circuit stayed
the orders.
The
Northern District of Illinois found the Trump administration had "made no
attempt to rely on the regular forces before resorting to federalization of the
National Guard," and it had not contended "(nor is there any evidence
to suggest) that the president is incapable with the regular forces of
executing the laws."
The Trump
administration argued there is "no reason to believe that courts can, or
should, second-guess the President's conclusion" that military force is
needed to suppress an emergency. "(T)his case," the brief argues,
falls in the heartland of unreviewable presidential "discretion."
According to the SCOTUSBlog, even if judicial review is permissible, the
government says, a court must be "highly deferential" to the
president's decision.
The
Seventh Circuit Court of Appeals upheld the district court's order finding
insufficient evidence of a rebellion and that the administration was unlikely
to succeed at trial. The Trump administration appealed to the U.S. Supreme
Court, requesting an emergency stay to allow the Illinois deployment to
proceed. The high court did not stay the order but agreed to hear the case.
With a
ruling pending, the Supreme Court requested supplemental briefs from both
parties on a specific legal question: how the term "regular forces"
in 10 U.S.C. 12406, the law relied on by the Trump administration to deploy
National Guard troops, should be interpreted and how that interpretation
affects the application of the law.
Congress
first delegated its constitutional power to activate state militias to the
president through the Militia Act of 1792. Congress renewed that delegation of
authority in the Militia Act of 1795. The 1795 Act was a precursor to the
Militia Act of 1903. Like Section 12406, the 1795 Act contained a predicate
"invasion" condition: "(W)henever the United States shall be
invaded, or be in imminent danger of invasion ... , it shall be lawful for the
president of the United States to call forth such number of the militia ... as
he may judge necessary to repel such invasion."
According
to Democracy Docket, "The (Supreme Court's) question appears to stem from
an amicus brief filed with the Supreme Court by Martin Lederman, a former DOJ
deputy assistant attorney general who's now a professor at the Georgetown
University Law Center."
Lederman
argued that "regular forces" does not refer to federal law
enforcement — ICE, FBI, border patrol— but rather the armed forces within the
"Department of War," formerly the Department of Defense.
Lederman
noted, according to Democracy Docket, that throughout U.S. history, and
specific legal history of 10 U.S.C. 12406, "regular" was often used
as a shorthand for the Army — "the regulars" — as opposed to the
state militias that evolved into today's National Guard.
The
argument goes, since the Trump administration never sent members of the armed
forces to assist ICE in Chicago, we do not know if the administration could
determine that it was unable to execute federal law with "regular
forces" as required by Section 12406 and "therefore lacked the
authority to federalize members of the Illinois Guard, Lederman asserted."
With the
Supreme Court's new briefing schedule, we can expect a decision as soon as the
end of the month.
Matthew T.
Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book
The Executioner's Toll, 2010 was released by McFarland Publishing. You can
reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino
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