Donald Trump

The decision is a preliminary "shadow docket" ruling. But it strongly suggests the majority believes Trump's use of the Guard is illegal.

Ilya Somin | 12.25.2025 11:32 AM

On Monday, in Trump v. Illinois, the Supreme Court ruled against Donald Trump in an important case involving his use of the National Guard for domestic law enforcement. The ruling is not a final decision on the merits; it is just a rejection of Trump's motion for a stay of the lower court ruling against him. But the Supreme Court decision strongly suggests the majority believes Trump's actions are illegal, and will rule against him when and if the Court considers the case more fully. In the meantime, Trump's use of the National Guard in Illinois remains blocked. I think the Court got this key issue right, though I might have preferred they rely on somewhat different reasoning.

The official rationale for Trump's use of the National Guard here is the supposed need to counter anti-ICE protests in the Chicago area, some of which had allegedly included elements of violence. In order to deploy the Guard, Trump invoked 10 U.S.C. Section 12406, which can only be used to federalize state National Guard forces and employ them for law enforcement in one of the following situations:

1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;

(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or

(3) the President is unable with the regular forces to execute the laws of the United States

No one claims Illinois has been invaded, and - as the Seventh Circuit explained, there is pretty obviously no "rebellion or danger of a rebellion" in Chicago. Thus, Trump primarily relies on the argument that he is "unable with the regular forces to execute the laws of the United States." In an unsigned opinion, the Supreme Court majority rejected that claim:

The Government asked this Court to stay the District Court's order…. We directed the parties to file supplemental letter briefs on an issue that the District Court had addressed but the parties' initial briefs had not: the meaning of the term "regular forces" in §12406(3). In its supplemental brief, the Government argues that the term refers to civilian law enforcement officers, such as those employed by Immigration and
Customs Enforcement or the Federal Protective Service.

Respondents, echoing the........

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