Federal judges have been wrestling with whether President Donald Trump’s National Guard deployments in blue cities including Portland, Los Angeles and Chicago are necessary. The Supreme Court on Tuesday found a way to sidestep that question, dissolving guard deployments on a technicality. Now the White House has two options: Reconsider its strategy of militarizing law enforcement — or escalate.
Federal law allows the president to deploy National Guard troops if he “is unable with the regular forces to execute the laws of the United States.” Trump said episodes of violent resistance to his administration’s deportation campaign met that standard. Litigation in lower courts focused on whether these episodes really rendered the federal government “unable” to enforce the law.
The Supreme Court instead ruled that Trump’s National Guard deployment in Chicago was unlawful based on the definition of “regular forces.” The administration had assumed “regular forces” meant civilian law-enforcement agencies such as Immigration and Customs Enforcement. Because those forces were unable to enforce the law, the administration said, Trump could deploy the Guard.
But supplementary briefs showed that when Congress granted the president this power in the early 1900s, “regular forces” meant the military. That would mean Trump can only deploy the Guard if “the regular military” is insufficient to execute the laws, the court said. The opinion added that circumstances in which the military can be used for domestic law enforcement are “exceptional.”
This textualist parsing allows the justices to sidestep a politically fraught inquiry about the degree of resistance to Trump’s immigration enforcement efforts. But the reasoning also has strange implications. It suggests that Trump would have to try sending the standing army to Chicago before he can resort to deploying state National Guard troops. In a November filing at the Supreme Court, the Trump administration suggested it had authority to do this under the Insurrection Act.
Last year, the Supreme Court avoided ruling on whether the Jan. 6, 2021, Capitol attack amounted to an “insurrection” or “rebellion” in a case involving Colorado’s effort to kick Trump off the ballot. But the Trump administration is eager to apply the “rebellion” label to civil unrest in blue cities to justify the deployment of troops. That could force the justices to make tougher calls.
The bottom line is that the Supreme Court deflected but did not foreclose Trump’s use of the military in U.S. cities. The court was closely divided. Five justices joined the majority opinion. Justice Brett M. Kavanaugh concurred with the result. And three conservatives justices dissented: Samuel A. Alito, Clarence Thomas and Neil M. Gorsuch.
The question is how the administration interprets this setback, legally and politically. It could take it as an opportunity to recalibrate its strategy of militarizing immigration enforcement. Or it could plow ahead with as aggressive a course as it can muster, inviting a higher-stakes confrontation at the Supreme Court down the line.
With Trump, forbearance is rarely a safe bet.
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