Today the Supreme Court denied the Trump administration’s petition for a stay on a lower court order that enjoined the administration from using National Guard troops to quell violence in Chicago that was directed against federal law enforcement personnel. The Court’s opinion is being widely misrepresented. For an accurate account, keep reading.
This is one of those cases where it is not easy for an outsider to understand why the parties did what they did. The administration sought to uphold its dispatching of the National Guard to Chicago only under 10 U.S.C. §12406(3), which authorizes the president to nationalize and deploy the Guard if he is “unable with the regular forces to execute the laws of the United States.” The administration argued (reasonably, I think) that “regular forces” means ICE and other non-military law enforcement personnel.
But the Court held–unanimously, and therefore probably correctly–that “regular forces” means “the regular forces of the United States military.” Since the administration made no showing that the U.S. Army would be unable to keep the peace in Chicago, §12406(3) did not authorize deployment of the Guard, so the administration lost.
That narrow ruling may have been correct. But it doesn’t mean that President Trump can’t use federal troops to aid ICE and suppress violence in cities like Chicago. The Court’s per curiam opinion says:
Because the statute requires an assessment of the military’s ability to execute the laws, it likely applies only where the military could legally execute the laws. Such circumstances are exceptional: Under the Posse Comitatus Act, the military is prohibited from “execut[ing] the laws” “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” 18 U.S.C. §1385.
But in fact, Congressional authority for domestic use of the military is surprisingly broad.
As noted above, the administration relied only on 10 U.S.C. §12406(3), and not the Insurrection Act, in justifying its National Guard deployment. The Insurrection Act, 10 U.S.C. §§ 251-255, broadly authorizes the use of federal troops to maintain order:
Sec. 252. Use of militia and armed forces to enforce Federal authority
Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.
Sec. 253. Interference with State and Federal law
The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it–
(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
The riots and violence that have taken place in Chicago and elsewhere, specifically targeting the enforcement of federal laws, cry out for relief under the Insurrection Act. Cities like Chicago have seen “domestic violence” that “opposes or obstructs the [immigration] laws of the United States.” The Insurrection Act therefore authorizes the President to use either regular Army forces or the National Guard to maintain order and permit the enforcement of our laws.
The most illuminating portion of today’s opinions is Footnote 2 of Justice Brett Kavanaugh’s concurring opinion:
As I read it, the Court’s opinion does not address the President’s authority under the Insurrection Act. See 10 U. S. C. §§252, 253. Moreover, the Court’s opinion does not address or purport to disturb the President’s long-asserted Article II authority to use the U.S. military (as distinct from the National Guard) to protect federal personnel and property and thereby ensure the execution of federal law. See 1 Supp. Op. OLC 343 (1971) (W. Rehnquist). As Professor Goldsmith has succinctly explained: “The protective power is the president’s inherent or independent Article II power to protect federal personnel, property, and functions. The key point is that the president can assert the protective power without reliance on Section 12406. He can deploy regular armed forces without any need to federalize the Guard. Presidents often have.” J. Goldsmith, President Trump Holds the Legal Cards on the Use of the Military in the Domestic Sphere, Executive Functions (Oct. 8, 2025). One apparent ramification of the Court’s opinion is that it could cause the President to use the U. S. military more than the National Guard to protect federal personnel and property in the United States.
Next time around, let’s hope that President Trump sends in the U.S. Army–and, better yet, the Marines!–to see that our immigration laws are enforced, and that those who try to destroy our democracy by undermining law enforcement are dealt with appropriately.
