184. The Massive Stakes of Trump v. Illinois

The Trump administration's 29th emergency application—to let it deploy federalized National Guard troops in Chicago on a profoundly dubious factual predicate—is a make-or-break moment for the Court.

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Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current issues, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re not already a subscriber, I hope you’ll consider becoming one—and upgrading to a paid subscription if your circumstances permit:

On Friday afternoon, the Trump administration filed its latest (29th) emergency application in the Supreme Court, this one seeking a stay of a district court temporary restraining order (TRO) that is barring the administration from deploying federalized National Guard troops into Chicago and its environs. Below, I’m going to go into much more detail on how we got here; on what the district court and Seventh Circuit each ruled; and on how the Solicitor General’s application is asking for relief based upon not just an utterly limitless view of when the President can deploy federalized National Guard personnel, but a wildly different portrayal of the facts on the ground than what either lower court specifically concluded.

But the upshot is that, more than any of the first 28 applications from the Trump administration, Trump v. Illinois is a make-or-break moment for this Court. For the Supreme Court to issue a ruling that allows the President to send troops into our cities based upon contrived (or even government-provoked) facts, even if it does so in a way that avoids formally upholding such conduct as a matter of law, would be a terrible precedent for the Court to set—not just for what it would allow President Trump to do now, but for the even more grossly tyrannical conduct it would allow him and future presidents (assuming we have any) to undertake later. If factually and legally unpersuasive domestic deployments of troops aren’t going to be a red line for the Supreme Court, what the heck will be?

More on all of that below. But first, the (other) news.

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On the Docket

The Merits Docket

The Court concluded the October argument calendar on Wednesday with the much-anticipated oral argument in the Louisiana redistricting cases, to which I’m planning to devote a full upcoming issue of the newsletter. The justices are not set to take the bench again until Monday, November 3—subject to the implications of the ongoing government shutdown (more on that below).

And despite a whole slew of “relists” (cases the justices are formally considering at more than one Conference—which is almost always a predicate to granting certiorari), there were no new grants last week. Instead, Tuesday’s regular Order List brought with it another flurry of denials—three of which provoked the first separate opinions of the new term:

1. In Humphreys v. Emmons, Justices Sotomayor, Kagan, and Jackson dissented from the denial of certiorari on post-conviction review of a capital conviction out of Georgia that witnessed what Sotomayor described (quite rightly, in my view) as “extreme juror misconduct.” (Because of procedural issues in the case, Sotomayor argued that, at a minimum, the Court should have vacated the lower-court ruling and remanded for further proceedings.)

2. In Thomas v. Humboldt County, Justice Gorsuch filed a solo “statement” respecting the denial of certiorari, suggesting that the Supreme Court should, sometime soon, reconsider its 109-year-old holding that the Seventh Amendment (which guarantees a right to jury trial in certain civil cases) doesn’t apply to state courts.

3. And in Lee v. Poudre School District R-1, Justice Alito filed a “statement” respecting the denial of certiorari, joined by Justices Thomas and Gorsuch, about the need for the Court to consider, sometime soon, “whether a school district violates parents’ fundamental rights when, without parental knowledge or consent, it encourages a student to transition to a new gender or assists in that process.”

The Emergency Docket

Bracketing (for a moment) the application in Trump v. Illinois, most of the action on emergency applications last week took place in non-Trump-related cases. On Tuesday, over no public dissents, the Court denied two stays of execution—one seeking to stop Florida from killing Samuel Smithers; and one seeking to stop Missouri from killing Lance Shockey.

The absence of dissents has become something of a norm in capital applications lately—which is why Wednesday’s denial of a stay of execution to Mississippi prisoner Charles Ray Crawford was so significant: Justices Sotomayor, Kagan, and Jackson all dissented—with Justice Sotomayor filing a 13-page opinion on their behalf. The question in Crawford is whether the Court’s 2018 ruling in McCoy v. Louisiana, which held that it violates the Sixth Amendment for lawyers to override a defendant’s explicit and unequivocal decision to not concede guilt at trial, can also be enforced by those whose convictions had become final before McCoy was decided. As Sotomayor argued, the Court ought to have taken up Crawford’s case to decide that question—both because of its importance and because it has divided lower courts.

And on Friday, the Court denied, over no public dissents, an application seeking to require California to grant a specific plaintiff a religious exemption from a public school immunization mandate where the vaccines at issue were developed with the assistance of stem cells.

The Week Ahead

We expect a regular Order List at 9:30 this morning. The Court also is continuing to sit not just on the Trump administration’s (now-month-old) application in the passports/gender identity case, but also the international child custody and the Michigan terroristic threats prosecution cases that I flagged last week. That would be more than enough to keep the Court busy, but I suspect that most of the justices’ attention is now focused on the application that came in late Friday in Trump v. Illinois—in which Justice Barrett ordered the plaintiffs to respond very quickly (by 5:00 ET today). It seems likely that we’ll hear something from the Court on this matter by the end of the week, if not sooner. As for what we’ll hear, well, see below.

Miscellaneous

The Court on Friday also released the argument calendar for the December argument session—in which only eight cases are scheduled across 12 “slots,” the headliner of which is surely Trump v. Slaughter (on whether to overrule Humphrey’s Executor and allow the President to fire without cause just about all agency heads; and what remedies courts can provide when a federal officer or employee is wrongly removed). That case will be argued on Monday, December 8.

The other important news out of the Court on Friday was its announcement that it would officially run out of appropriated funds at the end of the day on Saturday—and would thence make changes to its operations to comply with the Anti-Deficiency Act. For now, it’s not clear what that means beyond that the building is going to be closed to the public until further notice, and that at least some Court staff will almost certainly be on furlough. But there’s no indication yet (and no reason to expect) that the Court’s core functions will be affected. The real question, at least to me, is what the shutdown will mean for the November argument calendar if it hasn’t ended by November 3. My best guess is that the arguments will go forward in person, with a livestream but without the courtroom being open to the public (for the last time we had that situation, see the trivia below). Among other things, that might thwart President Trump’s claimed interest in attending the tariffs arguments on November 5 in person.

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The One First “Long Read”: A Reckoning for the Court and Domestic Use of the Military

I’ve written before about the constellation of issues surrounding President Trump’s efforts to deploy federal troops onto the streets of U.S. cities (for a list of—and links to—prior posts, see the footnote at the end of this parenthetical).¹ Although the Illinois-specific example wasn’t first, it is the first to reach the Supreme Court—after a district court in Chicago issued a temporary restraining order barring the use of federalized National Guard troops in and around Chicago under 10 U.S.C. § 12406 and an ideologically diverse Seventh Circuit panel unanimously left the most important part of the injunction intact—denying the Trump administration’s request for a “stay.”

Now, the Justice Department is asking the Supreme Court to step in—not just to stay the district court’s injunction pending appeal, but to issue an immediate “administrative” stay, “to prevent ongoing and intolerable risks to the lives and safety of federal personnel while this Court considers this application.” (No, you haven’t missed news of any federal personnel being killed or even seriously injured during the events in Chicago.) Suffice it to say, the application is full of heated rhetoric and lurid claims about the alleged violence and lawlessness happening on the ground in and around the Windy City. But it rests on two specific legal arguments: First, that the President has the exclusive and unreviewable power to decide whether and when to federalize National Guard troops under § 12406; and second, that even if there’s some room for courts to review his determinations, they easily meet the relevant standard here, especially because the President, it claims, “is unable with the regular forces to execute the laws of the United States.”

To understand how wildly overstated the government’s application is, and what it would mean for the Court to nevertheless grant it, it might be useful to first walk through exactly what the district court held—and why the Seventh Circuit denied almost all of the government’s application for a stay.

The Lower Courts in Illinois v. Trump

On September 26, the Department of Homeland Security sent a memorandum to the Secretary of Defense requesting “immediate and sustained assistance from the Department of War … in order to safeguard federal personnel, facilities, and operations in the State of Illinois.” The memo asserted that

Federal facilities, including those directly supporting Immigration and Customs Enforcement … and the Federal Protective Service … have come under coordinated assault by violent groups intent on obstructing lawful federal enforcement actions. These groups are actively aligned with designated domestic terrorist organizations and have sought to impede the deportation and removal of criminal noncitizens through violent protest, intimidation, and sabotage of federal operations.

The focal point of the alleged violence was the ICE Processing Center in Broadview, a suburb about 12 miles west of downtown Chicago. No one disputes that there has been a significant presence of protesters around the facility—especially after ICE started (dramatically) ramping up its enforcement operations in and around Chicago as part of “Operation Midway Blitz.” But there is a significant dispute as to (1) the extent to which those protests have been violent; (2) whether the protests have substantially interfered with ICE’s operations; and (3) even if so, whether any unlawful activity can be (and has been) adequately handled by local and state law enforcement officials.

Thus, when President Trump federalized approximately 300 members of the Illinois National Guard and an additional cohort of members of the Texas National Guard, and dispatched them to Chicago, the City of Chicago and Illinois sued. Specifically, their complaint claimed that the mobilization and deployment of federal troops given the facts on the ground was unauthorized by 10 U.S.C. § 12406; and in any event it violated both the Tenth Amendment and the Posse Comitatus Act, 18 U.S.C. § 1385.

In granting a temporary restraining order, Judge Perry highlighted the rather significant gap between the “facts” as portrayed by the Trump administration and the detailed affidavits from local and state officials:

The Court therefore must make a credibility assessment as to which version of the facts should be believed. While the Court does not doubt that there have been acts of vandalism, civil disobedience, and even assaults on federal agents, the Court cannot conclude that Defendants’ declarations are reliable. Two of Defendants’ declarations 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. In addition to demonstrating a potential lack of candor by these affiants, it also calls into question their ability to accurately assess the facts. . . . [There is] a troubling trend of Defendants’ declarants equating protests with riots and a lack of appreciation for the wide spectrum that exists between citizens who are observing, questioning, and criticizing their government, and those who are obstructing, assaulting, or doing violence. This indicates to the Court both bias and lack of objectivity. The lens through which we view the world changes our perception of the events around us. Law enforcement officers who go into an event expecting “a shitshow” are much more likely to experience one than those who go into the event prepared to de-escalate it. Ultimately, this Court must conclude that Defendants’ declarants’ perceptions are not reliable.[²]

This conclusion did a fair amount of work in the rest of Judge Perry’s 51-page opinion. Ultimately, Judge Perry concluded that the statutory predicates to invoking § 12406 had not been satisfied. As the Seventh Circuit summarized her conclusions, “There was insufficient evidence of rebellion or a danger of a rebellion, nor was there sufficient evidence that the President was unable with the regular forces to execute the laws of the United States.” And because of those holdings, Judge Perry also concluded that the plaintiffs were likely to prevail on their Tenth Amendment claim, as well (she declined to reach the plaintiffs’ arguments under the Posse Comitatus Act).

The Trump administration quickly appealed to the Seventh Circuit—and also sought a stay pending appeal. On Thursday afternoon, a unanimous (and ideologically diverse) panel of that court denied most of the government’s application. It continued its own administrative stay of Judge Perry’s TRO insofar as it barred even the federalization of National Guard troops, but it left the TRO intact with respect to their mobilization and deployment (more on this distinction shortly).

On whether the courts could even review the President’s assertion that circumstances warranted federalization of National Guard troops, the panel explained that “the statute here enumerates three predicate conditions for the President’s decision to call forth the National Guard. Nothing in the text of § 12406 makes the President the sole judge of whether these preconditions exist.” And it made quick work of the Trump administration’s claim that the Supreme Court’s 1827 decision in Martin v. Mott foreclosed review—explaining, as I suggested in some depth last Thursday, that nothing in Justice Story’s opinion for the Court says anything of the kind.

As for the merits, critically, the panel agreed with the Ninth Circuit’s earlier ruling in Newsom v. Trump “that the President should be granted ‘a great level of deference’ on the question of whether one of the statutory predicates exists.” It nevertheless held that the Trump administration was unlikely to prevail largely because it concluded that the district court’s key factual findings were not “clearly erroneous.” (For non-lawyers, this is the ordinary standard by which appellate courts review factual findings by district courts—leaving them intact unless they are obviously incorrect.)

Specifically:

The submitted evidence consists almost entirely of two sets of competing declarations describing the events in Broadview. The district court provided substantial and specific reasons for crediting the plaintiffs’ declarations over the administration’s, and the record includes ample support for that decision. Given the record support, the findings are not clearly erroneous.

Based on those findings, “we see insufficient evidence of a rebellion or danger of rebellion in Illinois. The spirited, sustained, and occasionally violent actions of demonstrators in protest of the federal government’s immigration policies and actions, without more, does not give rise to a danger of rebellion against the government’s authority.” And, in perhaps the most important substantive passage of the opinion (with my emphasis added):

there is insufficient evidence that protest activity in Illinois has significantly impeded the ability of federal officers to execute federal immigration laws. Federal facilities, including the processing facility in Broadview, have remained open despite regular demonstrations against the administration’s immigration policies. And though federal officers have encountered sporadic disruptions, they have been quickly contained by local, state, and federal authorities. At the same time, immigration arrests and deportations have proceeded apace in Illinois over the past year, and the administration has been proclaiming the success of its current efforts to enforce immigration laws in the Chicago area.

The Seventh Circuit disagreed with the district court only as to whether the balance of equities supported blocking the mobilization of federalized National Guard troops. As it explained, “we conclude that the harm to plaintiffs of permitting Guard troops to remain temporarily under federal control, without deploying, as this case further progresses appears to be relatively minimal.” Thus, it stayed Judge Perry’s TRO as to the underlying federalization and mobilization of National Guard troops in and around Chicago (i.e., the troops can remain federalized and can be physically mustered), but left it in place with regard to their deployment anywhere in Illinois.

The Government’s Application

As has often been the case with the Trump administration’s emergency applications, the filing in Trump v. Illinois tells a very different story of the facts than the lower courts. One needn’t get past page 1 of the application to find the government claiming that immigration officers’ enforcement efforts have been “met with prolonged, coordinated, violent resistance that threatens their lives and safety and systematically interferes with their ability to enforce federal law.” Not to repeat myself, but the lower courts here expressly found to the contrary—both as to the nature of the protests and their effects. The application briefly asserts that the district court’s factual findings here were clearly erroneous, but its support for why that is so are the very affidavits and declarations that the district court found to be not reliable. (The application somehow fails to note the discredited assertion that the Federal Protective Service had requested troops to protect the federal courthouse.)

On substance, the application argues that Martin v. Mott “squarely controls here,” which, if true (and it isn’t), would prevent courts from reviewing any domestic deployments of the military. And it argues that, even if courts can review the President’s determinations in this space, such review is exceedingly deferential and is easily satisfied by the (discredited) evidence the Trump administration provided in the district court. Indeed, the application’s argument is, effectively, that any interference with federal law enforcement or behavior that requires diversion of federal law enforcement resources is sufficient to satisfy § 12406—which would effectively allow the President to call out the National Guard in response to even 100% peaceful anti-government protests solely because even a little bit of federal manpower would have to be redirected toward them.³

Finally, on the balance of the equities, the application makes the rather stunning claim that “it is difficult to imagine how deploying the National Guard to protect federal personnel and property, rather than leaving them federalized but non-deployable, could cause irreparable harm to anyone.” In other words, the Trump administration’s position is that, even unlawful deployments of the military should be allowed to persist because they don’t actually harm anyone. That’s a rather striking position to take given the Founding-era hostility to a standing army and its potential use as a tool for oppressing the populace. As Justice Black wrote in a 1957 plurality opinion:

The Founders envisioned the army as a necessary institution, but one dangerous to liberty if not confined within its essential bounds. Their fears were rooted in history, . . . . [but] the generation that adopted the Constitution did not distrust the military because of past history alone. Within their own lives they had seen royal governors sometimes resort to military rule. British troops were quartered in Boston at various times from 1768 until the outbreak of the Revolutionary War to support unpopular royal governors and to intimidate the local populace.

Against that backdrop, the notion that domestic deployments of the military are harmless, or even that the harms they produce are somehow reparable (good luck suing for damages), is simply risible. And yet, it’s doing quite a lot of work in the Trump administration’s application for relief here.

The Stakes

As noted above, Justice Barrett (in her capacity as the Circuit Justice for the Seventh Circuit) gave Illinois and Chicago a remarkably tight window in which to file a response (their brief is due by 5 p.m. ET today). I imagine the Trump administration will file a reply, probably tomorrow, so that a ruling could come as soon as late tomorrow (but more likely later in the week).

As for why it’s this application that presents the Court with a make-or-break moment, it’s worth reflecting on what it would mean if the full Court grants the Trump administration’s request.

First, and immediately, it will mean that the Trump administration is allowed to deploy troops onto the streets of Chicago (and Broadview) to effectively militarize the enforcement of our immigration laws. Although the application to the Supreme Court is replete with references to protecting federal property, the federal government doesn’t need the authorities that are currently blocked to do that; it can use regular troops, almost certainly without invoking 10 U.S.C. § 12406 or any other statute. (This is the “protective” power.) The power the Trump administration is seeking here is much broader—and would almost certainly mean that federalized National Guard troops would start accompanying ICE officers on immigration raids and other operations—even if they’re not making the arrests themselves. That would be a … dramatic … escalation relative to where we are today.

Second, it would also send the message to other cities (and lower courts) that challenging similar deployments in court may ultimately succeed (depending upon whether the justices explain why they’re granting the application), but that no interim relief is going to be available. That might radically alter the calculus for those jurisdictions thinking about how best to contest what they view as unlawful domestic deployments of the military—away from litigation, and toward other remedies (such as decreasing other fonts of cooperation with the federal government; seeking to prosecute federal officers under state law; and other moves that would also be escalations from where we are).

Third, and most importantly, it would allow the federal government to obtain emergency relief based upon either (1) a limitless view of what it means to be “unable to execute the laws of the United States”; or (2) an incredibly one-sided factual narrative that was expressly rejected by the district judge, and that the unanimous court of appeals panel refused to disturb. The justices aren’t factfinders, and absent some “clear” reason to believe that the lower courts erred in discrediting the Trump administration’s factual claims (when, in fact, there are lots of reasons to believe that the district court was right), to grant relief in the face of those findings is to not just show stunning disrespect to both the lower courts and the appropriate standard of review; it’s to send the message that the facts just don’t matter—so long as five or more justices personally believe whatever the federal government is telling them.

That would be a big enough problem in other contexts (I’ve already written about the casual relationship Justice Kavanaugh’s Vasquez Perdomo concurrence has with the facts), but it would be utterly catastrophic here. After all, armed with a grant of emergency relief on this application, what is to stop the Trump administration from making comparably inflated and/or invented claims about the situations on the ground in other American cities as a pretextual basis for deploying troops? And what’s to stop it from making those claims not (just) tomorrow, but next November—on the eve of the midterm elections?

As I wrote in an op-ed earlier this month, the real questions in these cases are not about the federal government’s (broad) legal authorities; they’re about the facts. And the absolute last place the Supreme Court should be re-litigating the facts is in the truncated, compressed frenzy of resolving an emergency application. If the justices really want to look at this case closely, they should grant certiorari before judgment and take full briefing and argument before doing anything to upset the status quo. Otherwise, the Court would be greenlighting pretextual (if not abusive) domestic deployments of the military—whether temporarily (if the justices think they might ultimately rule against the Trump administration on the merits), or … not.

If that’s not a red line for this Court, it’s hard to imagine what would be.

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SCOTUS Trivia: Oral Arguments Closed to the Public

If we get to November 3 without a resolution to the government shutdown, the Court may be in the position of holding oral arguments (certainly a core part of the Court’s functioning) without opening the building to the public. In fact, I’m aware of exactly one (extended) example of the Court holding in-person, but closed arguments: The entire October 2021 Term. As folks might remember, due to COVID, the Court postponed in-person arguments during the March and April 2020 argument sessions, switching to telephonic arguments in May 2020—and throughout the October 2020 Term—all of which were live-streamed over the internet.⁴ The Court also stopped taking the bench to hand down decisions—instead relying exclusively upon website postings to transmit its rulings.

At the beginning of the October 2021 Term, the justices re-took the bench, and in-person oral arguments resumed, but without the building re-opening to the public (this is why the Court continued to not take the bench for opinion hand-downs). The building fully reopened for the October 2022 Term, at which point public attendance at oral arguments (and the justices taking the bench for opinion hand-downs) resumed, at least until now.

Among other things, it’s hard to believe that was just three years ago…

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1. Here are my prior posts related to the topic:

1. 142. Five Questions About Domestic Use of the Military

2. 156. Federalizing the California National Guard

3. 159. The Posse Comitatus Act Meets the President’s “Protective” Power

4. 172. “Federalizing” D.C.

5. 176. Illinois v. Texas

6. 181. Courts and Domestic Use of the Military

7. Bonus 183: Martin v. Mott

2. Judge Perry also noted the completely inaccurate claim in one of the federal government’s affidavits that the Federal Protective Service had requested troops to help protect the federal courthouse in Chicago. (“To their credit,” she wrote, “Defendants have since submitted a corrected declaration, and the affiant has declared that they did not make the error willfully.”).

3. The application also never really explains why, even if the facts are as the Trump administration claims with regard to interference with ICE, the President “is unable with the regular forces to execute the laws of the United States,” i.e., why it couldn’t use active-duty federal troops. Instead, it argues (in footnote 4) that the term “regular forces” in § 12406 isn’t a reference to full-time military personnel, but rather includes civilian law enforcement officers—which is not remotely how that term was understood when § 12406 was enacted.

4. In an early bonus issue, I wrote about my personal experience arguing a case by telephone. It was … not my favorite.