* Several Republican states have asked a federal court for leave to file an amicus brief supporting the federal government’s argument against Illinois’ lawsuit seeking to stop national guards from being deployed here. Iowa, Montana, Oklahoma, South Carolina, Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Mississippi, Missouri, Nebraska, South Dakota, Texas and West Virginia all joined in…
Prohibiting the deployment of the National Guard to ensure ICE agents can fulfill their duties safely and effectively comes at an immense cost to the States. The undersigned States recognize the important roles and balance played in the National Guard system by both the states and federal government. But Plaintiffs fail to respect that balance here. […]
ARGUMENT
I. Violent Rioters in Chicago Are Harming Federal Officers and Property and Impacting the Federal Government’s Ability to Carry Out Federal Laws. […]
Given the prevalence of violence aimed at federal law enforcement, in Chicago and around the country, it is unsurprising that the President deployed National Guard resources to protect them from obstructions in their attempts to follow the law.
II. President Trump Certainly Has a “Colorable Basis” For Federalizing the National Guard to Protect Federal Agents and Property from Violent Rioters in Chicago. […]
There has been a continuous and growing threat outside of the ICE building in Chicago. Hundreds of protesters have gathered, assaulted ICE agents, and actively worked to block agents from accessing the building. See DHS supra, https://bit.ly/3IP2Rvi. And the President’s order to send approximately 300 National Guard members, contrasted with the thousands deployed in California in Newsom, shows that there is a measured response here. That is not to say that the President cannot federalized more members, but this response certainly shows that it was a reasoned decision based on the facts as known at the time. The President’s response here was certainly “within a ‘range of honest judgment.’”
III. The Harms Incurred If Violent and Destructive Protests and Riots Are Allowed to Continue in Chicago are Borne by All States.
The President’s decision to federalize the national guard to protect federal officers and property in Chicago has effects beyond the borders of Illinois; states and cities across the U.S. are benefited by this decision. […]
States are at risk of even more costs if violent protests are implicitly endorsed in Illinois. Antifa-aligned groups seek to undermine the federal government as it works to redress this significant problem by causing damage to federal property, harming federal agents, and in some cases, damaging the city in which the riot is located—causing significant damage to the state and its citizens. […]
Accordingly, the President’s action of federalizing the National Guard furthers the public interest because it allows ICE agents to continue to perform their statutory duties of identifying, apprehending, and removing illegal aliens, which is the only way to protect the States from the harms caused by illegal immigration. And it protects states from the costs incurred by violent protests and riots. Further, allowing the federal government to quash this type of behavior at its outset sets a precedent discouraging similar behavior in other States.
*** UPDATE *** Oklahoma’s attorney general signed on to the brief, but the state’s governor opposes the deployment…
Gov. Kevin Stitt of Oklahoma, a Republican and the chairman of the National Governors Association, on Thursday criticized the deployment of Texas National Guard troops to Illinois as a violation of his beliefs in federalism and “states’ rights.” […]
Mr. Stitt on Thursday said, “We believe in the federalist system — that’s states’ rights,” adding, “Oklahomans would lose their mind if Pritzker in Illinois sent troops down to Oklahoma during the Biden administration.”
Gov. Stitt appears to be taking the wise course of “be careful what you wish for.”
[ *** End Of Update *** ]
* Meanwhile, a bipartisan group of former governors, including Jerry Brown, Steve Bullock, Arne Carlson, Mark Dayton, Jim Doyle, Parris Glendening, Jennifer Granholm, Bill Graves, Christine Gregoire, Jay Inslee, Tony Knowles, Gary Locke, Terry McAuliffe, Janet Napolitano, Martin O’Malley, Deval Patrick, Marc Racicot, Bill Ritter Jr., Kathleen Sebelius, Steve Sisolak, Eliot Spitzer, Ted Strickland, Tom Vilsack, Bill Weld, Christine Todd Whitman and Tom Wolf have asked for leave to file their own amicus brief…
Our constitutional order depends on the dispersion and careful balance of authority among the federal government and the states. The contours of that balance were established at the Founding and are embodied in the United States Constitution. “[T]he Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the State and Federal Governments would exercise concurrent authority over the people.” […]
Throughout our history, and notwithstanding our nation’s political, social, and geographic diversity, the federal government has rarely and only under the most extraordinary circumstances imposed military authority on the citizens of a state against the wishes of the state’s executive. The structure of our federalist system, and the language of the relevant statutory provisions at issue in this case, impose legal constraints on the president’s authority to take such extreme measures. Indeed, over the course of our nearly 250-year history, the president has attempted such military imposition only a handful of times, and only in times of significant exigency. […]
ARGUMENT
I. Federalism is enshrined in the Constitution and entrusts the states—not the federal government—with general police powers.
“It is incontestible that the Constitution established a system of ‘dual sovereignty,’” in which the states “retained ‘a residuary and inviolable sovereignty.’” Printz, 521 U.S. at 918–19 (quoting The Federalist No. 39, at 245 (James Madison) (Clinton Rossiter ed., 1961)). This division of authority is evidenced throughout the Constitution, which grants Congress only “discrete, enumerated” powers. Printz, 521 U.S. at 919. The Tenth Amendment makes that division explicit by reserving all other powers “to the States respectively, or to the people.” […]
Within this framework, states retain broad “police powers” to protect public health and safety—authority the federal government lacks. … Although the federal government may override this authority with a clear directive from Congress, the presumption remains that states—not the federal government—bear primary responsibility for maintaining civil order within their borders.
II. The National Guard plays a critical role in assisting governors in protecting the public. […]
In amici’s collective experience, incidents requiring a federal military response are nearly unprecedented—state and federal officials have worked together in good faith to avoid the use of federal forces in situations normally handled by state and local law enforcement. […]
III. Only in the most exceptional circumstances has the National Guard been federalized or active-duty forces deployed in a state absent consultation with state authorities. […]
Federalization without gubernatorial consent has occurred only in exceptional circumstances where, for example, governors openly defied federal law. For instance, in 1957, President Eisenhower federalized the Arkansas National Guard and deployed active-duty troops only after Arkansas Governor Orval Faubus openly refused to comply with a federal court order to integrate Little Rock Central High School. Similarly, in 1965, President Johnson federalized Alabama’s Guard, but only after Governor George Wallace refused to follow a court order requiring that state officials protect civil rights marchers in Selma. In neither instance, it should be noted, did the president rely on 10 U.S.C. § 12406 to federalize the state’s National Guard. In both instances, the president at the time had invoked the Insurrection Act, given governors’ refusals to either protect peaceful marchers from violence or students from riots. No such invocation has been made here with respect to federalization and deployment of troops in Chicago. […]
IV. The administration’s interpretation of 10 U.S.C. § 12406 conflicts with this history and tradition of federal-state coordination. […]
It is implausible that Congress intended to grant the president sweeping authority to federalize the Guard without geographic or temporal limits even when a state is maintaining order through civilian means. … Section 12406 provides conditional authority—triggered only by rebellion, invasion, or the inability to enforce federal law using regular forces—that limits federalization through a fact-based inquiry, and it instructs that federal authorities work with, rather than around, “the governors of the States.” […]
V. The administration’s interpretation of 10 U.S.C. § 12406 threatens public safety. […]
If federalization of the National Guard is unreviewable, a president motivated by ill will or competing policy priorities could divert Guard resources away from critical state needs, including natural disasters or public health crises. […]
VI. The courts play a critical role in protecting this balance of federal-state authority.
The president claims unreviewable authority under 10 U.S.C. § 12406 to federalize the National Guard. That assertion conflicts with the Constitution, the judiciary’s role in upholding our federalist structure, and long-standing principles of state sovereignty. Judicial review is especially critical where one sovereign encroaches on another’s authority to police domestic unrest.
“It is emphatically the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), including “determining the limits of statutory grants of authority.” Stark v. Wickard, 321 U.S. 288, 310 (1944). […]
When Congress intends to grant the president (or others) unreviewable decision-making authority, it does so with unmistakable language. In Trump v. Hawaii, for example, the Court held that 8 U.S.C. § 1182(f) “exudes deference to the President in every clause” and “entrusts to the President the decisions whether and when” to exercise the authority granted by the statute. 585 U.S. 667, 684 (2018). […]
Section 12406 contains no such sweeping language. And unlike in the immigration or foreign policy context—where executive power is at its apex—the Constitution contemplates a shared structure of authority over state militias. […]
This Court need not define the outer limits of presidential authority to conclude that the action here—federalizing the National Guard without clear statutory justification or state consent—is subject to review and incompatible with federalist principles.
* Also, nine former military service secretaries and retired four-star admirals and generals filed an amicus brief in the case. Click here to read it.
Discuss.