Brendan Scanland
WASHINGTON, D.C. — President Donald Trump continues to threaten deployment of National Guard troops into several Democratic-led cities.
But his efforts continue to face legal pushback, including in Chicago — which has become the latest flashpoint in a growing political battle over executive authority.
It’s been over a week since hundreds of National Guard troops from Illinois and Texas rolled into the Windy City. A total of 500 were activated by the administration to protect federal property and support federal immigration agents amid an escalating deportation campaign.
“We haven’t really even gotten going yet, if we didn’t have to fight all of these radical left governors, we could have had Chicago taken care of,” said President Trump. “Every American deserves to live in a community where they’re not afraid of being mugged, murdered, robbed, raped, assaulted or shot.”
But city and state leaders are calling the move an “unconstitutional invasion.” They’ve sued to stop it.
“It is Trump and Miller’s agents who are operating like his own personal secret police, harassing civilians, tear gassing communities, arresting journalists and grabbing people on the street to ask them for their papers based on the color of their skin,” said Gov. JB Pritzker, D-Ill. “Chaos, confusion and destabilization are the means. Eroding our democratic institutions is his end goal.”
Last week a federal judge blocked the deployment for two weeks, expressing skepticism over the administration’s justification for deployment. A federal appeals court has since allowed the troops to stay in Chicago — but they can’t deploy until the legal fight plays out. Until the legal battle shakes out, the troops remain on standby.
At the center of the battle is a century-and-a-half-old law, which limits military involvement in domestic law enforcement.
“1878 we get the Posse Comitatus Act. What it means is that we have a prohibition against using the U.S. military, which includes the National Guard now, from taking part in civilian law enforcement,” said Lindsey Cormack, an associate professor of political science at the Stevens Institute of Technology.
“Trump’s position, however, is that when he sends troops, he’s initially sending them to protect ICE agents or federal buildings, which is proper. That’s not local law enforcement activity. That’s protecting federal agents, federal property,” said John Deaton, U.S. Marine veteran and former federal prosecutor.
Deaton said a scenario could unfold, similar to what played out in Los Angeles earlier this year.
“There were protesters who were threatening ICE agents. And we’ve also seen that happen in Illinois, in Chicago as well,” said Deaton. “And so in those instances, I do believe the president has clear authority to protect federal agents, federal buildings.”
A state’s National Guard answers to the governor — with the exception of Washington, D.C. Without a governor’s consent, the president’s options to deploy the National Guard are limited.
However, another law from America’s early days could also play a role in ongoing legal challenges. The Insurrection Act, one of the most significant presidential emergency powers, can provide some options. Invoking the 1807 act allows the president to deploy the U.S. armed forces to suppress insurrections, quell civil unrest or domestic violence, and enforce the law when it is being obstructed. This week, President Trump was asked about invoking it as a means to bypass court challenges.
“Well, I could use it if I wanted to. I could use it,” he said. “That’s a very simple answer. I’m allowed to use the Insurrection Act.”
“What he’s saying is that, there’s an unwillingness or an inability of the people on the ground within those states to serve as they should in order to protect federal buildings, federal property, or federal agents doing Immigration and Customs Enforcement,” said Cormack. “He’s trying to lay the groundwork for saying that if you were to invoke the Insurrection Act, you would be justified in doing so, because it looks like the local authorities are either not able or not willing to enforce law as he sees fit.”
Cormack said friction is inevitable because there’s no clear legal definition for terms like insurrection or unlawful obstruction.
“Those are not clearly defined in statute. This is where there’s wiggle room or gray zones for people to make arguments. It’s probably going to turn on some of those definitions in order to see how judges and eventually justices are going to rule on these sorts of things,” she said.
Deaton believes the administration may also point to drug cartels — which the president has designated foreign terrorist organizations — to make an argument for invoking the Insurrection Act.
“For example, I wouldn’t be surprised if I saw the administration get more specific about MS-13 gang activity in Chicago and then basically say, look, that constitutes an invasion of a sort,” said Deaton. “He’s designated those gangs as foreign terrorist organizations and therefore it may give it more teeth to fit under the Insurrection Act.”
The standoff isn’t just about Chicago. A federal judge in Oregon also extended a temporary block on Trump’s attempt to send troops into Portland. And now, the president is eyeing other Democratic strongholds — including San Francisco.
“I think we can make San Francisco as one of our great cities. Ten years ago, 15 years ago — and now it’s a mess. And we have great support in San Francisco,” said Trump.
