US President Donald Trump announced on Wednesday that he is “removing” National Guard troops from Chicago, Los Angeles, and Portland after a major Supreme Court setback that sharply narrowed his authority to federalize state guard units for domestic law-enforcement missions. The court’s decision casts the Chicago deployment as likely unlawful under the Posse Comitatus Act, and it will shape the legal terrain for any future attempt to send troops into Democratic-led cities.
Trump claimed on social media that crime had been “greatly reduced” in the three cities “ONLY” because of the Guard presence and warned that federal forces “will come back, perhaps in a much different and stronger form, when crime begins to soar again.” At the same time, the cities he named were those where federal courts had already blocked or significantly constrained his efforts to deploy the guard, raising the question of whether the “removal” reflects a voluntary policy choice or a forced retreat after multiple defeats in court.
A federal district court entered a temporary restraining order barring the deployment of the guard in Illinois. The US Court of Appeals for the Seventh Circuit permitted the guard to remain in a federalized status but maintained the bar on their actual deployment. The government then sought emergency relief from the Supreme Court.
In an unsigned opinion, issued after a supplemental briefing on the meaning of “regular forces,” the court focused on the text and structure of §12406(3) and its interaction with the Posse Comitatus Act, 18 U.S.C. §1385. The court held that “the term ‘regular forces’ in §12406(3) likely refers to the regular forces of the United States military.” That reading has two critical consequences. First, it means the trigger is the president being “unable with the regular [military] forces to execute the laws of the United States.” Second, because Posse Comitatus generally bars the military from executing the laws “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress,” the court reasoned that §12406(3) “likely applies only where the military could legally execute the laws.”
The majority stated: “At this preliminary stage, the Government has failed to identify a source of authority that would allow the military to execute the laws in Illinois.” The president had not invoked an Insurrection Act provision or any other statute that would supply a Posse Comitatus exception. Instead, he relied on inherent Article II authority to use the military to protect federal personnel and property. The government also maintained, consistent with longstanding Office of Legal Counsel views, that such “protective functions” are not “executing the laws” for Posse Comitatus purposes. If that is so, the court observed, it is “hard to see how performing those functions could constitute ‘execut[ing] the laws’ under §12406(3).”
