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* 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.”
* 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.
posted by Rich Miller
Thursday, Oct 9, 25 @ 10:45 am
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The idea that a governor of one state would file a brief in support of military action in another state is truly asinine.
What business is it of theirs? None.
What do they actually know about what is going on here? Very little if anything besides what they see on the Tee Vee.
More dumb partisan politics.
Sad that these governors cannot read or cannot understand the United States Constitution. Maybe passing a Constitution test should be a requirement for elected office.
Comment by JS Mill Thursday, Oct 9, 25 @ 11:09 am
So, when a Democratic president decides to send in troops to straighten out St. Louis, or Kansas City, or New Orleans, or Mobile, or Memphis, or Gainesville, or Cleveland—or any number of dangerous red-state cities with crime rates much higher than Chicago’s, which doesn’t even make the top 75 on the most recent list I can find of high-crime urban areas–those red-state governors will be fine with that?
Or do they think that will never happen, because they are banking on their leader realizing his dream of establishing an American monarchy, with himself as the first king?
Comment by Crispy Thursday, Oct 9, 25 @ 11:10 am
How about these Republican governors stop trying to insert themselves into the business of the State of Illinois. They may be in favor of a military dictatorship. Illinois is not.
Comment by Demoralized Thursday, Oct 9, 25 @ 11:10 am
The repetitive use of forms of the word “riot” in the Republican governor’s request is truly disturbing.
To be clear - a minister praying and protesters in blow-up dinosaur costumes singing and dancing are not “riots.” (And neither is yelling at black plateless SUVs pulling out onto public property.)
The next seriously injured ICE/DHS/FBI agent will be the first one.
It’s almost as if they’re not really paying attention…
Comment by Lefty Lefty Thursday, Oct 9, 25 @ 11:20 am
They’re paying attention to what will get them in their orange god’s good graces - if he remembers.
Comment by West Side the Best Side Thursday, Oct 9, 25 @ 11:26 am
Violent Riots.
Sure, Jan.
The Party told you to reject the evidence of your eyes and ears. It was their final, most essential command.
Comment by sulla Thursday, Oct 9, 25 @ 11:43 am
==I. Violent Rioters in Chicago Are Harming Federal Officers and Property and Impacting the Federal Government’s Ability to Carry Out Federal Laws.==
Are the violent rioters in the room with us now?
Comment by DarkestBeforeDawn Thursday, Oct 9, 25 @ 11:43 am
Reading the live feed of the Illinois vs Trump guard case right now. https://bsky.app/profile/jonseidel.bsky.social/post/3m2rjpitb4c27
So far, the thing that got to me the most was the government’s lawyer ‘ insists the president’s decision is “unreviewable.” ‘
To the judge. Who is reviewing it. Yeeeeesh.
Comment by BE Thursday, Oct 9, 25 @ 11:56 am
=The repetitive use of forms of the word “riot” in the Republican governor’s request is truly disturbing.=
Maybe they were confused by “Riotfest”?
Comment by JS Mill Thursday, Oct 9, 25 @ 12:00 pm
===Maybe they were confused by “Riotfest”?
Win the day (maybe just the hour at the pace of things, but still good work there)
Comment by ArchPundit Thursday, Oct 9, 25 @ 12:17 pm
What is so disturbing about just about everything Trump is doing is it is setting a vary dangerous precedent for the next President no matter what party. Sorta like when Democrats got rid of filibuster for judges
The national guard was hung in my opinion is so illegal. What till a Democrat President sends the guard to supervise federal elections in Texas and Alabama.
Comment by DuPage Saint Thursday, Oct 9, 25 @ 12:19 pm
There’a no rioting. Absolutely ridiculous claim.
Comment by low level Thursday, Oct 9, 25 @ 12:25 pm
If the Republican governors are confused as to what a riot looks like they might want to google January 6, 2021.
Comment by don the legend Thursday, Oct 9, 25 @ 12:33 pm
Sort of makes you wonder who penned this petition. Heritage perhaps?
Comment by H-W Thursday, Oct 9, 25 @ 12:40 pm
=Antifa-aligned groups=
My father was in an antifa-aligned group in the 1940s. It was called the U.S. Army Air Corps.
Comment by Steve Rogers Thursday, Oct 9, 25 @ 12:54 pm
Is there really an immense cost to the other states if the National Guard is not allowed to enter Illinois? I don’t see it. It seems to me the immense cost to all the states is the mobilization of the U.S. Military in order to invade the states, so as to assist ICE. ICE does not need protection. There are no riots, and the few harms that have occurred have been the results of ICE violating the law. ICE killed a man in a car. ICE killed a woman in a car. ICE needs better training on how to enforce the law without killing people.
But there are no “riots.” In the proof that this assertion is false, the entire argument fails to convince. In the absence of riots, it is impossible to conclude there are immense costs caused by rioting.
The only immense costs are the result of mobilizing federal troops to guard facilities, needlessly. Take away the Guard, and save money.
Comment by H-W Thursday, Oct 9, 25 @ 12:56 pm
I would like to hear more from these red states who claim it is necessary for their NG to be allowed to invade Illinois, especially the ones that are on our borders.
Comment by BE Thursday, Oct 9, 25 @ 12:58 pm
“Anyone who has the power to make you believe absurdities has the power to make you commit atrocities”. Voltaire
Comment by Dotnonymous x Thursday, Oct 9, 25 @ 1:02 pm
==I. Violent Rioters in Chicago Are Harming Federal Officers and Property and Impacting the Federal Government’s Ability to Carry Out Federal Laws.==
Try this, instead; it would appear to more accurately reflect what has been happening on the ground:
I. Violent Federal Officers in Chicago and its suburbs Are Harming Protestors and Property and Impacting the Federal, State, and Local Government’s Ability to Carry Out their Duties as proscribed by Federal, State, and Local Laws and the U.S. Constitution.
Comment by Pot calling kettle Thursday, Oct 9, 25 @ 1:08 pm
I appreciate the comments by the Oklahoma Governor Stitt. He is term-limited and will not be running in 2026.
His AG, Drummond, is running for Governor in ‘26.
Guessing that explains the mixed message.
Profiles in Courage.
Comment by Frida's Boss Thursday, Oct 9, 25 @ 1:19 pm
Remember when GOP Governors were all in for States Rights?
I guess times have changed or they’re banking on Donny to continue this circus act with ICE with the NG potentially being called up from their State.
Pick a side.
Comment by Loop Lady Thursday, Oct 9, 25 @ 1:25 pm
Crazy political jockeying makes for some really bad decisions, and worse, precedents.
Comment by Linda Thursday, Oct 9, 25 @ 1:25 pm
==Are the violent rioters in the room with us now?==
Subtle and well done, Darkest.
The protesters/demonstrators are clearly not rioting. Very disappointing that so many governors would sign on. Good for OK Gov. Stitt. I guess that’s one argument for term limits? (Thanks for the info, Frida’s Boss; definitely makes more sense now.)
Comment by Leslie K Thursday, Oct 9, 25 @ 1:31 pm
=Win the day (maybe just the hour at the pace of things, but still good work there)=
Thanks, but I pas the baton to @don the legend for this fine work…
=If the Republican governors are confused as to what a riot looks like they might want to google January 6, 2021.=
may I recommend @don the legend pay it forward for this fine addition…
=My father was in an antifa-aligned group in the 1940s. It was called the U.S. Army Air Corps.=
Kudos to all. Snark at it’s finest.
=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.=
Patently false. There is a legal process that must be followed and they are not as they are detaining. US citizens without a lawful; reason.
=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.=
We do not punish states for riots and never have. There is not one legal precedent for this and the statement is pure jibberish.
Comment by JS Mill Thursday, Oct 9, 25 @ 1:33 pm
==Further, allowing the federal government to quash this type of behavior at its outset sets a precedent discouraging similar behavior in other States.==
Saying the quiet part out loud of ‘if you let him do this to IL, we’ll applaud him doing this to any other blue states. Just don’t do it to us.’
Comment by BE Thursday, Oct 9, 25 @ 1:35 pm
JB Pritzker should send the Illinois National Guard to liberate Gary and Indianapolis, both of which have higher murder rates than Chicago. If the Indiana governor thinks that using the National Guard this way is a good idea, then it’s a good idea.
Comment by Formerly Unemployed Thursday, Oct 9, 25 @ 1:57 pm
“Or do they think that will never happen, because they are banking on their leader realizing his dream of establishing an American monarchy, with himself as the first king?”
Maybe the real answer is yes. The MAGA party is counting on retaining power and controlling the federal government regardless of election outcomes. Otherwise their legal claims would be extremely short sighted and foolish. Or, maybe they are just complicit fools.
Comment by Steve Polite Thursday, Oct 9, 25 @ 1:58 pm
=We do not punish states for riots and never have.=
To be clear, I do not think these peaceful protests in Broadview or Chicago constitute riots by any stretch of the imagination. They more resemble toe “police riots” surrounding the 1968 democratic convention with ice and border patrol agents attacking peaceful (if not snarky) protestors.
Comment by JS Mill Thursday, Oct 9, 25 @ 2:04 pm
On one hand: You have out-of-touch, out-of-state elitist Governors sitting in their ivory tower State Capitol telling citizens of another state that they need to live under military occupation because they think a rebellion is going on despite having not stepping foot in the area recently.
On the other hand: you have actual regular, normal, hard working, salt-of-the-earth citizens of said State that oppose military occupation in their neighbourhood as no rebellion is going on.
Cue Tony Romo Voice: Oooooh I don’t know about this one Jim!
Comment by Hot Taeks Thursday, Oct 9, 25 @ 2:12 pm
Pat Quinn is not on the amicus? Just gets no respect.
Comment by ArchPundit Thursday, Oct 9, 25 @ 2:34 pm