It’s hard to think of a more dramatic question than the issue before the Supreme Court in Trump v. Illinois.
President Donald Trump wants to use federalized troops to quell protests outside an immigration detention facility near Chicago. Two federal courts have ruled that federal law does not permit Trump to do this. But the case is now before a Supreme Court dominated by six Republican justices who rarely part ways with the leader of their political party.
Trump’s arguments in the Illinois case, moreover, are quite aggressive. His lawyers claim that the question of when the president may exercise his power to take control of National Guard members, who are ordinarily under the command of state officials, “is committed exclusively to the president” and cannot be reviewed by federal courts. Once Trump does so, his lawyers also claim, “the Guardsmen serve under the command and control of federal military officials and ultimately the President as Commander in Chief.”
Thus, if the justices embrace this argument, Trump could potentially gain unchecked authority to call up the National Guard and order armed guardsmen to “protect” voting precincts in Democratic regions of the country.
The case arises out of Trump’s decision to place several hundred members of the Illinois and Texas National Guard under his control and order them to an immigration detention facility in Broadview, Illinois, about 12 miles west of Chicago. Since September, a small group of people have protested against the Trump administration’s immigration policies outside of that facility, and some of them have allegedly vandalized federal law enforcement vehicles. Some people have also been arrested for violent crimes, such as aggravated battery.
According to Judge April Perry, a federal district judge who temporarily blocked this deployment, “the typical number of protestors is fewer than fifty,” and “the crowd has never exceeded 200.”
To justify Trump’s decision to deploy military personnel to an American town, his lawyers rely on a federal law that permits the federal government to take command of National Guard members if there is “a rebellion or danger of a rebellion against the authority of the Government of the United States” or if “the President is unable with the regular forces to execute the laws of the United States.”
Trump, in other words, claims that a small crowd that ranges from a few dozen people to a couple hundred has so overwhelmed the United States’ capacity to enforce its own laws that it justifies using the military against US citizens on US soil.
Needless to say, the stakes in the Illinois case are breathtaking. If Trump is allowed to use military personnel to suppress a tiny group of protesters and vandals, then it is unlikely that this Court will place any meaningful limits whatsoever on his ability to deploy the US military against Americans.
What does the law actually say about presidential use of the National Guard?
If you want to understand the Illinois case, it’s helpful to first understand how the framers of the original Constitution understood the role of the military.
The framers were quite fearful that military power would be directed against a nation’s own citizens or against state governments that were out of step with whoever ran the federal government. Indeed, they were so fearful that they imagined a country with no permanent national army. This is why the Constitution prohibits Congress from appropriating any money to the army that does not expire after two years.
As the Supreme Court explained in Perpich v. Department of Defense (1990), among the framers, “there was a widespread fear that a national standing Army posed an intolerable threat to individual liberty and to the sovereignty of the separate States.”
The framers did, however, contemplate that each state would maintain a militia — which could, under conditions established by Congress, be called into federal service “to execute the Laws of the Union, suppress Insurrections and repel Invasions.”
Though the United States’ military might, and its tolerance for standing armies, has obviously grown considerably since the founding, federal law still reflects the framers’ fear of military personnel being used to oppress the people or to trample on states’ internal governance.
While the president may, in limited circumstances, order the National Guard (the modern version of founding-era militias) into service on US soil, such orders are supposed to be a last resort. The relevant statute permits such use of the National Guard only to repel a foreign invasion, to suppress a rebellion, or when the president is “unable” to otherwise execute US law.
Trump, however, asks the Supreme Court to read these limits to be entirely meaningless. His primary argument is that he can simply declare that a rebellion or similar emergency exists, and the courts can do nothing to intervene even if that declaration is ridiculous. Alternatively, he asks the justices to read words like “rebellion” or “unable with the regular forces to execute the laws of the United States” so broadly that they encompass a small protest that has never grown beyond a couple hundred people.
Trump’s first argument arises out of a single line from the Court’s decision in Martin v. Mott (1827) that, if read in isolation, does seem to support his broad claim of authority over the National Guard. Martin involved a previous version of the federal law governing presidential control of the militia, and one sentence of that opinion states that the “authority to decide” whether calling up the militia is justified “belongs exclusively to the President.”
But, as both federal courts that heard the Illinois case concluded, Trump’s lawyers read this line out of context. Martin involved a member of the New York militia who refused President James Madison’s order to report for federal service during the War of 1812. In that case, the Supreme Court asked a question: “Is the President the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question, upon which every officer to whom the orders of the President are addressed, may decide for himself, and equally open to be contested by every militiaman who shall refuse to obey the orders of the President?”
The Court then answered that question with the line Trump’s lawyers quote, saying that the president has the authority to decide whether to federalize the militia; it’s not each individual person within that militia who holds that authority. Thus, Martin doesn’t stand for the proposition that courts may never review whether a president’s decision to call up the National Guard complies with federal law. It simply held that members of the militia can’t decide on their own whether to report for duty or not.
That leaves Trump’s argument that a small gathering of pro-immigration protesters amounts to a “rebellion,” or a mob that so threatens the United States that law will cease to function unless military personnel suppress that mob.
The latter claim is risible on its face. As Judge Perry noted, “federal immigration officials have seen huge increases in arrests and deportations,” despite the fact that several dozen people have been protesting outside of a single immigration detention facility in Illinois. So, the government appears to be executing its laws just fine.
Similarly, Judge Perry defines the term “rebellion” to mean “a deliberate, organized resistance, openly and avowedly opposing the laws and authority of the government as a whole by means of armed opposition and violence.” Thus, mere lawbreaking, or even lawbreaking that seeks to prevent federal officials from carrying out their duties, is not enough. The alleged rebellion must actually threaten the “authority of the government as a whole.”
That definition makes sense, seeing as the word “rebellion” is tucked within a statute that also targets foreign invasions or major uprisings that threaten anarchy. So, it makes sense that the word “rebellion” should be read to encompass similar threats to national security or US stability. A narrow definition of the word “rebellion” also makes sense in light of the United States’ history of fearing the use of military forces on domestic soil.
Will that be enough to persuade this Supreme Court? Probably not, given the Republican justices’ extraordinarily solicitude for the head of their political party. But a decision authorizing Trump to use the National Guard to suppress a minor protest would be a sharp departure from the nation’s history of caution regarding domestic use of the armed forces.
The Illinois case may turn on whether the Trump administration can be trusted
In its brief to the justices, the Trump administration suggests that there’s been a breakdown of order outside the Broadview facility. They claim that “federal law enforcement agencies have been forced to operate under the constant threat of mob violence and to divert resources from enforcement efforts to protect federal agents and property.” Meanwhile, the Trump administration says, “local forces have failed to respond, or unaccountably delayed their response, even when federal agents face life-threatening violence.”
Both the Illinois plaintiffs and state and local police, meanwhile, present a more nuanced picture. In their view, while protesters have sometimes engaged in criminal activity, state and local police have been responsive to the federal government’s needs, and much of the violence near the facility was provoked by bad policing from federal officials.
Judge Perry summarized the Broadview Police Department’s position, saying they believe that the “tone of the protesters” changed for the worse after federal officials made a show of force; “twenty to thirty federal agents parked across the street and walked toward the ICE Processing Center in camouflage tactical gear with masks covering their faces.” Broadview Police also complained that federal officials’ “use of chemical agents against protestors ‘has often been arbitrary and indiscriminate,’ at times being used on crowds as small as ten people.”
Perry concluded that the state and local police’s version of events is more credible than the Trump administration’s. Among other things, she noted that some of the Trump administration’s declarations to her court contain factual errors or otherwise dubious claims. Two of Trump’s witnesses, for example, “refer to arrests made on September 27, 2025 of individuals who were carrying weapons and assaulting federal agents,” but “neither declaration discloses that federal grand juries have refused to return an indictment against at least three of those individuals, which equates to a finding of a lack of probable cause that any crime occurred.”
Judge Perry’s determination that the Trump administration is not credible, and that the state and local police’s version of events is, matters, because appellate courts are only supposed to second guess a trial judge’s factual findings if they are “clearly erroneous.” So, the Supreme Court should presume that the Trump administration’s portrait of widespread chaos outside of the Broadview facility is wrong.
But many of the Republican justices are openly hostile toward district judges who do not share their views. And those justices are particularly credulous toward Trump and his administration, especially in cases involving law enforcement.
So, there’s a real chance that the Republican justices will resolve the Illinois case by simply assuming that order has broken down in Broadview and then interpreting the law as if Trump’s claims are gospel. In the worst case scenario, they could also demand that lower courts defer to Trump even if he uses the military to suppress dissent or to intimidate Democratic voters.
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