A major and unexpected setback for Donald Trump’s Government. The Supreme Court this Tuesday blocked the president’s attempt to deploy the National Guard in Chicago to support his immigration offensive in that city. This is the first time that the justices – in recent months – have ruled on the Republican’s efforts to use troops to enforce immigration laws and combat what he insists is crime in large cities governed by Democrats.
The Supreme Court preliminarily and temporarily rejected the Trump Administration’s emergency request to overturn a ruling by a federal district judge that had blocked the deployment of hundreds of soldiers in Chicago. An appeals court had refused to intervene after the Justice Department appealed, and it took more than two months for High Court judges to issue a decision.
“At this preliminary stage, the Government has failed to identify a source of authority that would allow the military to execute the laws in Illinois,” . “The president has not invoked any law that establishes an exception to the Posse Comitatus Law,” the justices add, referring to the legislation, signed in 1878, that prohibits troops from performing functions of maintaining order.
Federal law contains several exceptions to Posse Comitatus. For example, the president can federalize to the National Guard—that is, taking control of a State’s troops, which are normally under the command of the governor—in the event of a rebellion against the Government or when it can no longer enforce the laws with the “regular forces.” This second exception was the one that the president cited to justify.
However, the Supreme Court considers that “at least at this procedural stage, the Government has not met its burden of demonstrating” that this exception applies in this case. The judges consider that the “regular forces” mentioned in the law “probably refer to the regular forces of the United States Army.” Therefore, before the president can federalize to the Guard in accordance with what the law establishes, “probably must have legal or constitutional authority to execute the laws with the regular military forces and, in addition, be ‘incapable’ of fulfilling that function with said forces,” the judges consider.
The decision divided the court’s six conservative justices, with three in the majority and three dissenting, while the three liberal justices were part of the majority. “I strongly disagree with the manner in which the court has resolved this request,” Justice Samuel Alito wrote in a dissenting opinion. “There is no basis to reject the president’s determination that he failed to enforce federal immigration laws using the civilian law enforcement resources at his disposal,” he added.
Early last October, the National Guard of both Illinois and Texas was deployed to protect federal personnel and property, particularly Immigration and Customs Enforcement (ICE) and Border Patrol agents and facilities, which in September launched a large-scale operation to detain migrants in the city. The operations were met with citizen protests.
The president has attempted to deploy the National Guard in several cities governed by the Democratic Party, always with the excuse that these cities are plagued by crime and violence. This despite the fact that the figures show otherwise and despite the fact that local and state officials have opposed it.
Last summer, the Republican began sending troops to Los Angeles. He also tried to send them to Portland (Oregon), but a federal judge permanently stopped him in November; to Memphis, Tennessee, where they are expected to patrol until March while the appeals court considers the state’s appeal against a Nashville judge’s decision to temporarily block the deployment; and to Washington DC, where they have been since August. In the capital, at the end of November; one soldier died and the second was seriously wounded.
This Tuesday’s Supreme Court decision is likely to reinforce similar challenges filed against National Guard deployments in other cities, as the ruling limits the president’s ability to justify them.
