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Justice Samuel Alito criticized the Supreme Court’s majority in a sharp dissent Tuesday after the high court decided 6–3 to temporarily block President Donald Trump from deploying the National Guard in Chicago.
Alito said the high court’s majority made “unwise” and “imprudent” determinations to reach its decision. The majority also did not give enough deference to Trump after the president found that agitators were hindering immigration officers and other federal personnel from doing their jobs in Chicago and that the National Guard needed to step in to help.
“Whatever one may think about the current administration’s enforcement of the immigration laws or the way ICE has conducted its operations, the protection of federal officers from potentially lethal attacks should not be thwarted,” Alito wrote.
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The lawsuit stemmed from Trump invoking a rarely used federal law to federalize about 300 members of the National Guard and deploy them to protect federal personnel and buildings.
The Trump administration argued that protesters were obstructing, assaulting and threatening ICE officers, and the National Guard was needed because Illinois’ resistant Democratic leaders and local law enforcement were not adequately addressing the matter, the administration said.
Illinois sued, and the lower courts blocked the National Guard’s deployment, finding that Trump had not satisfied criteria in the law that said the president could only use the reserved forces when he was “unable with the regular forces to execute the laws of the United States.” The Supreme Court’s decision upheld that finding while the case proceeds through the courts.
The Supreme Court’s majority said in an unsigned order that “regular forces” meant the U.S. military, not ICE or other civilian law enforcement officers. The majority said that since Trump had not identified any justification for using the regular military for domestic purposes in Chicago, there was no way to exhaust that option before using the National Guard.
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Alito, who was joined by Justice Clarence Thomas, objected, saying the majority prematurely raised and accepted an “eleventh-hour argument” about the meaning of “regular forces.” Justice Neil Gorsuch issued a separate dissent.
The majority also took issue with the statute’s language about executing laws, saying that if the National Guard soldiers were simply protecting federal officers, that would not amount to executing laws.
And, if the National Guard were executing laws, that could violate the Posse Comitatus Act, which says that the military cannot generally act as a domestic police force unless Congress authorizes it to, the majority said.
Alito, an appointee of President George W. Bush, said he found it “puzzling” that the majority thought the Posse Comitatus Act was so relevant, saying the president could use the military for a “range of domestic purposes.” The Constitution allows the president to use the military to respond to war, insurrection or “other serious emergency,” Alito wrote.
The conservative justice also warned of broader implications of the majority’s decision, as Trump has attempted to deploy the National Guard in other cities as part of a crackdown on immigration enforcement and street crime. The president has also been met with legal pushback in California and Portland, Oregon, but the Chicago case was the farthest along in the court system.
Requiring Trump to exhaust use of other military forces before using the National Guard would lead to “outlandish results,” Alito said.
“Under the Court’s interpretation, National Guard members could arrest and process aliens who are subject to deportation, but they would lack statutory authorization to perform purely protective functions,” Alito wrote. “Our country has traditionally been wary of using soldiers as domestic police, but it has been comfortable with their use for purely protective purposes.”
Illinois had argued that ICE protests were mostly peaceful and that local law enforcement had unrest under control. The state would suffer irreversible harm if the courts did not block Trump from using the National Guard, state attorneys argued.
“The planned deployment would infringe on Illinois’s sovereign interests in regulating and overseeing its own law enforcement activities,” the attorneys wrote, adding that Illinois’ “sovereign right to commit its law enforcement resources where it sees fit is the type of ‘intangible and unquantifiable interest’ that courts recognize as irreparable.”
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