The SCOTUS Today series doesn’t usually report on U.S. Supreme Court opinions relating to its interim orders, e.g., orders dealing with stays.
However, given the newsworthiness of the President’s efforts at deploying State National Guard units in areas of increasing civil unrest, yesterday’s decision by a sharply divided Court in Trump v. Illinois is worthy of mention.
Thus, we note that the Court has refused to allow President Trump to deploy National Guard troops in Chicago, dealing a setback to his attempts to use the military in U.S. cities.
On October 4, 2025, the President called 300 members of the Illinois National Guard into active federal service to protect federal personnel and property in and around Chicago. He supplemented that contingent on the next day with members of the Texas National Guard. President Trump claimed reliance on 10 U.S.C. §12406(3), which empowers him to federalize members of the Guard if he is “unable with the regular forces to execute the laws of the United States.” The Illinois District Court, later essentially affirmed by the U.S. Court of Appeals for the Seventh Circuit, issued a temporary restraining order barring the federalization and deployment of the Guard in Illinois.
In denying a stay of the orders below, the Supreme Court focused on the meaning of the term “regular forces” in §12406(3). The government argued “that the term refers to civilian law enforcement officers, such as those employed by Immigration and Customs Enforcement or the Federal Protective Service.” The respondents, tracking the Illinois District Court, argued that the term refers to the regular forces of the U.S. military.
In an unsigned order, a majority of the Supreme Court sided with the respondents (Justice Kavanaugh concurring, and Justices Thomas, Alito, and Gorsuch dissenting) and held that “[t]his means that to call the Guard into active federal service under §12406(3), the President must be ‘unable’ with the regular military ‘to execute the laws of the United States.’” And this necessarily can only apply “where the military could legally execute the laws. Such circumstances are exceptional: Under the Posse Comitatus Act, the military is prohibited” from acting “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” 18 U.S.C. §1385. At this stage of the case, the government has failed to identify a source of authority that would allow the military to execute the laws in Illinois.
The extent to which the Trump administration can, in the future, make sufficient findings to justify these National Guard deployments is uncertain. What is certain is that a Court whose majority many are arguing is subservient to the President is, on the whole, willing to assert its independence.