Summary
The Supreme Court denied the Government’s application for a stay of a district court order barring the federalization and deployment of National Guard members in Illinois. The Court concluded at the preliminary stage that “regular forces” in 10 U.S.C. §12406(3) likely refers to the regular forces of the United States military and that the Government had not shown sufficient statutory or constitutional authority for the proposed action. Justice Kavanaugh concurred in the judgment on narrower grounds, while Justices Alito and Thomas dissented.
Topics
Practice areas
Questions Presented
- Whether the phrase "regular forces" in 10 U.S.C. § 12406(3) likely refers to the regular forces of the United States military rather than federal civilian law-enforcement personnel.
- Whether, under § 12406(3), the President must have statutory or constitutional authority for the regular military to execute the laws before determining that he is unable to do so with those forces.
- Whether the Government established at the stay stage that § 12406(3) authorized federalization of the National Guard to protect federal personnel and property in Illinois.
Holdings
- At the preliminary stage, "regular forces" likely refers to the regular forces of the United States military, not federal civilian law-enforcement officers.
- Because § 12406(3) requires an assessment of the military's ability to execute the laws, it likely applies only when the military could legally execute the laws; thus, before federalizing the Guard under that provision, the President likely must have statutory or constitutional authority to execute the laws with the regular military.
- The Government failed, at the preliminary stage, to show that § 12406(3) permitted federalization of the Guard based on inherent authority to protect federal personnel and property in Illinois.
Key quotations
“We conclude that the term “regular forces” in §12406(3) likely refers to the regular forces of the United States military.” (at 2)
“So before the President can federalize the Guard under §12406(3), he likely must have statutory or constitutional authority to execute the laws with the regular military and must be “unable” with those forces to perform that function.” (at 2-3)
“Thus, at least in this posture, the Government has not carried its burden to show that §12406(3) permits the President to federalize the Guard in the exercise of inherent authority to protect federal personnel and property in Illinois.” (at 3)
Factual background
The President federalized approximately 300 Illinois National Guard members and federalized Texas National Guard members for service in Chicago after the Government alleged obstruction, threats, assaults, violence, and damage to federal personnel and property connected with immigration-enforcement activities. The President relied on 10 U.S.C. § 12406(3), which authorizes federalization when he is unable with the regular forces to execute the laws of the United States. Illinois obtained a temporary restraining order barring federalization and deployment, and the Government sought a stay.
Procedural history
The United States District Court for the Northern District of Illinois entered a temporary restraining order barring the federalization and deployment of National Guard units in Illinois. The Seventh Circuit denied the Government's motion for a stay in relevant part, allowing the Guard to remain federalized in Illinois while continuing to bar deployment. The Supreme Court denied the Government's application for a stay.