The Supreme Court has thwarted Donald Trump’s deployment of National Guard troops to Chicago—with Brett Kavanaugh’s help.
In the unsigned order, the court wrote that the Trump administration had no sufficient justification to federalize the troops in the Democratic-led city, where Immigration and Customs Enforcement agents have been carrying out “Operation Midway Blitz.”
“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 court determined.
The Trump administration “has not carried its burden to show that” it had the authority to have members of the National Guard protect ICE agents, the court added in its emergency docket ruling.
Federal law permits the president to federalize the National Guard when “regular forces” aren’t enough to help him execute the laws. The court said it was “likely” that “regular forces” means the standing military, and not federal agents like those in ICE.
Kavanaugh, whom Trump nominated to the bench in 2018 after the retirement of Anthony Kennedy, concurred.
“…[I]t does not appear that the President has yet made the statutorily required determination that he is ‘unable’ with the U.S. military, as distinct from federal civilian law enforcement officers, to ensure the execution of federal law in Illinois,” he wrote.
But Kavanaugh, 60, expressed concerns that the court went too far in its judgment, explaining that he would have denied the government’s claim on narrower grounds.
“The Court’s legal interpretation, as I understand it, could lead to potentially significant implications for future crises that we cannot now foresee‚” he warned, offering an example of a mob threatening to storm a courthouse where security is outnumbered and troops can’t mobilize in time.
“Under the Court’s order today, even in those circumstances the President presumably could not federalize the National Guard,” he wrote.
Justices Samuel Alito, Clarence Thomas and Neil Gorsuch dissented.
“The court fails to explain why the president’s inherent constitutional authority to protect federal officers and property is not sufficient to justify the use of National Guard members in the relevant area for precisely that purpose,” Alito wrote.
Alito, 75, claimed the majority on the court had “no basis for rejecting the president’s determination that he was unable to execute the federal immigration laws using the civilian law enforcement resources at his command.”
“Whatever one may think about the current administration’s enforcement of the immigration laws or the way ICE has conducted its operations, the protection of federal officers from potentially lethal attacks should not be thwarted.”
In a statement to the Daily Beast, White House spokesperson Abigail Jackson said Trump remains committed to his immigration crackdown.
“The President promised the American people he would work tirelessly to enforce our immigration laws and protect federal personnel from violent rioters. He activated the National Guard to protect federal law enforcement officers, and to ensure rioters did not destroy federal buildings and property,” Jackson said. “Nothing in today’s ruling detracts from that core agenda. The Administration will continue working day in and day out to safeguard the American public.”
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