Supreme Court is set to rule on Trump using troops in U.S. cities

WASHINGTON— The Supreme Court will rule for the first time on whether the president has the authority to send troops to American cities, over the objections of local and state officials.

A decision may come at any time.

And even a one-line order siding with President Trump would send the message that he is free to use the military to carry out his orders, especially in Democratic-controlled cities and states.

Trump administration lawyers made an urgent appeal Last week, we asked the court to remove judges in Chicago who blocked the deployment of the National Guard there.

Chicago-based judges said Trump exaggerated the threat facing federal immigration officials and equated “protests with riots.”

But Trump administration lawyers said those judges do not have the authority to second-guess the president. His authority to deploy the National Guard “is at his sole discretion by law.” They argued in their objections Trump vs. Illinois.

This assertion of broad executive authority may win favor with conservatives on the court.

Administration lawyers told the court that the National Guard would “protect federal personnel, property, and functions in the face of ongoing violence” in response to aggressive immigration enforcement but would not engage in ordinary policing.

But Trump has repeatedly threatened to send U.S. troops to San Francisco and other Democratic-led cities to conduct regular law enforcement.

When it sent 4,000 Guard members and 700 Marines to Los Angeles in June, their mission was to protect federal buildings from protesters. But state officials said the troops went beyond that and were used to carry out a demonstration in force at MacArthur Park in July.

Newsom and Bonta warn of dangers

That’s why legal experts and Democratic officials are sounding the alarm.

“The Trump Illinois case is a make-or-break case for this court,” said Georgetown law professor Steve Vladeck, who has frequently criticized the court’s pro-Trump emergency orders. “For the Supreme Court to issue a decision allowing the president to send troops into our cities based on fabricated (or even government-instigated) facts… would set a terrible precedent not only for what the court would now allow President Trump to do, but also for much more cruel behavior.”

California Adv. Gen. Rob Bonta and Governor Gavin Newsom filed a brief in the Chicago case warning of impending danger.

“On June 7, our President made a call for the first time in our nation’s history. [the Militia Act of 1903] To federalize a State’s National Guard over the objections of the State Governor. “It has since become clear that the federal government’s actions in Southern California earlier this summer were merely the opening salvo in an effort to transform the military’s role in American society,” they said.

“At no time in our history has the President used the military in this way: as his personal police force, to be assigned to law enforcement duties as he sees fit. … What the federal government seeks is a standing army drawn from state militias, deployed for an indefinite period of time for the purpose of civil law enforcement throughout the nation at the direction of the President.”

Conservatives cite civil rights examples

Conservatives counter that Trump has sought to enforce federal law in the face of strong resistance and at times lack of cooperation from local officials.

“Portland and Chicago have seen violent protests outside federal buildings, attacks on ICE and DHS officers, and efforts to thwart immigration law enforcement,” said UC Berkeley law professor John Yoo. “Although local officials raise cries of federal ‘occupation’ and ‘dictatorship,’ the Constitution imposes on the president the duty to ‘ensure the faithful execution of the laws.'”

He noted that past presidents “used the same powers to desegregate schools in the South after the Brown v. Board of Education case in the 1950s and to protect civil rights protesters in the 1960s.” Those who applauded these interventions noted that they could no longer deny the same constitutional authority when it was exercised by a president they opposed.

The legal battle so far has ignored Trump’s claims of uncontrolled power but has instead focused on whether Trump acted in accordance with laws passed by Congress.

The Constitution gives Congress the power to “call out the Militia to enforce the laws of the Union, suppress insurrections, and repel Invasions.”

Beginning in 1903, Congress provided that “in case of danger of invasion by a foreign nation, the President may call into service members of the Federal service and National Guard units of any State in such numbers as he deems necessary.”

While Trump’s lawyers claimed that Trump was facing an “insurrection”, the legal dispute focused on whether Trump could “enforce the law”.

Lower courts backed down

Federal district judges in Portland and Chicago blocked Trump’s impeachment after ruling that determined protesters were not obstructing U.S. immigration officials from doing their job.

Judge Karin Immergut, a Trump appointee, called the administration’s description of “war-torn” Portland “fact-free.”

Judge April Perry, a Biden appointee in Chicago, said “political dissent is not rebellion.”

But two appeals courts (the 9th Circuit in San Francisco and the 7th Circuit in Chicago) issued opposing decisions.

A panel of the 9th Circuit said judges should defer to the president’s assessment of the danger facing immigration officials. Applying that standard, the appeals court voted 2-1 to say the National Guard deployment in Portland could continue.

But a panel of the 7th Circuit in Chicago agreed with Perry.

“The facts do not justify the President’s actions in Illinois, and in fact, we seriously respect his allegations,” they said. 3-0 decision last week. “Federal facilities, including the processing plant in Broadview, remained open despite regular demonstrations against the administration’s immigration policies. Although federal officials faced occasional disruptions, they were quickly reined in by local, state, and federal officials.”

Lawyers for Illinois and Chicago agreed and urged the court to reject Trump’s appeal.

“There is no basis for claiming that the president cannot ‘enforce’ federal law in Illinois,” they said. “Federal facilities in Illinois remain open, people who violated the law by attacking federal officials have been arrested, and immigration enforcement in Illinois has increased in recent weeks.”

But Trump Lawyer Gen. D. John Sauer offered a very different explanation in his appeal.

“On October 4, the President determined that the situation in Chicago had become unsustainably dangerous for federal agents who were now risking their lives to perform essential law enforcement functions,” he wrote. “The President deployed the federalized Guard to Illinois to protect federal officers and federal property.”

He disputed the notion that agents only confront peaceful protests.

“Protesters at the Broadview facility beat and punched federal officers on multiple occasions. As crowd size increased throughout September, physical altercations became more pronounced and confrontations more violent,” Sauer wrote. “Rioters targeted federal officers with fireworks and threw bottles, rocks and tear gas at them. More than 30 people [DHS] “Officers were injured during attacks on federal law enforcement at the Broadview facility alone, resulting in multiple hospitalizations.”

He said he had no legal or factual basis to block the appointment of judges in Chicago and called on the court to overturn their decision.