After days of frustration, the Trump administration is taking an emergency petition directly to the U.S. Supreme Court. At issue are rulings by two Illinois judges and a three-judge panel of the Seventh Circuit that strip the President’s constitutional authority over deployment of National Guard troops under federal command and substitute a random judge’s opinion for the President’s decision-making power.
This is the state of play.
On October 4, 2025, the President determined that the situation in Chicago had become unsustainably dangerous for federal agents attempting to carry out law enforcement, but specifically immigration enforcement, actions in and around Chicago. President Trump directed Secretary of War Pete Hegesth to “call into Federal service at least 300 members of the Illinois National Guard, until the Governor of Illinois consents to a federally-funded mobilization, under Title 32 of the United States Code, of the Illinois National Guard under State control. The members of the Illinois National Guard called into Federal service shall protect ICE, FPS, and other United States Government personnel who are executing Federal law in the State of Illinois, and Federal property in the State of Illinois.” On October 6, Illinois Governor JB “Royale with Cheese” Pritzker sued to prevent the mobilization.
Since then, there have been several court decisions that, in my view, fly in the face of the plain text of the law. The President has absolute authority to decide when the situation requires federalizing the Guard. It is not open to discussion.
Judge April Perry granted a 14-day temporary restraining order (TRO) blocking the “federalization and deployment of the National Guard of the United States within Illinois” (including out-of-state troops). Despite the video to the contrary, she found no “credible evidence of a danger of rebellion” or inability to enforce federal laws. She opined that using federalized Guardsmen would add fuel to the fire.” There was even an appeal to ‘state sovereignty’ that wouldn’t have been out of place in Charleston, South Carolina, in early 1861.
The administration appealed to the Seventh Circuit and won a partial stay of Perry’s order on October 11. It graciously allowed the administration to federalize Guardsmen, but they were not allowed to be deployed for riot control duties or security patrols. A three-judge panel upheld Perry’s TRO on Friday, finding that the judges didn’t think a little rioting was all that bad.
Although we substantially agree with the definition of rebellion set forth by the district court in Newsom, we emphasize that the critical analysis of a “rebellion” centers on the nature of the resistance to governmental authority. Political opposition is not rebellion. A protest does not become a rebellion merely because the protestors advocate for myriad legal or policy changes, are well organized, call for significant changes to the structure of the U.S. government, use civil disobedience as a form of protest, or exercise their Second Amendment right to carry firearms as the law currently allows. Nor does a protest become a rebellion merely because of sporadic and isolated incidents of unlawful activity or even violence committed by rogue participants in the protest. Such conduct exceeds the scope of the First Amendment, of course, and law enforcement has apprehended the perpetrators accordingly. But because rebellions at least use deliberate, organized violence to resist governmental authority, the problematic incidents in this record clearly fall within the considerable daylight between protected speech and rebellion.
Applying our tentative understanding of “rebellion” to the district court’s factual findings, and even after affording great deference to the President’s evaluation of the circumstances, we see insufficient evidence of a rebellion or danger of rebellion in Illinois. The spirited, sustained, and occasionally violent actions of demonstrators in protest of the federal government’s immigration policies and actions, without more, does not give rise to a danger of rebellion against the government’s authority. The administration thus has not demonstrated that it is likely to succeed on this issue.
The three judges were appointed by Obama, G.H.W. Bush, and Trump.
The ruling is utterly insane. They rely entirely upon the situation as described to them by one side of the lawsuit and completely ignore any possible intelligence that the administration may have. Not to mention that the law places the responsibility upon the President to make the judgment to federalize troops. Had this standard been applied in Little Rock, Arkansas, in 1957, the schools would still be segregated.
The new filing by Solicitor General John Sauer is basically a strike at all resistance to the President’s authority over the National Guard, because a SCOTUS ruling on this threshold matter will eliminate all current and further lawsuits on the issue.
This is an EXCEPTIONAL piece of work out of the Solicitor General’s Office yesterday.https://t.co/wZRwoTv8QE
— Shipwreckedcrew (@shipwreckedcrew) October 18, 2025
At bottom, the plaintiffs seek to use this suit to second-guess the President’s judgment that recent and repeated acts of violence targeting federal facilities and personnel in Illinois warrant calling up the National Guard—including because the violence has left the President sufficiently “unable” to ensure faithful “execut[ion]” of federal law. 10 U.S.C. 12406(3). Like the 1795 law at issue in Martin, Section 12406 makes clear that Congress has granted “the authority to decide whether” the statutory prerequisites are satisfied “exclusively to the President.”
…
The district court’s order—and the court of appeals’ partial stay of that order— cause irreparable harm to the Executive Branch by countermanding the President’s authority as Commander in Chief, jeopardizing the lives and safety of DHS officers, and preventing the President and the Secretary of War from taking reasonable and lawful measures to protect federal personnel from the violent resistance that has persisted in the Chicago area for several months. As this Court recently reiterated, the President “must ‘take Care that the Laws be faithfully executed,’ ” and he “bears responsibility for the actions” of his subordinates in the Executive Branch.
I can’t copypasta the whole thing, but if you want to understand the issues, you have to read the brief.
The plaintiffs in this case, which might as well include the judges who have heard it, have until 5 p.m. to reply. The administration will be allowed to rebut, and we should see a decision in the next couple of weeks.
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