Declaring that “political opposition is not rebellion,” the federal appeals court in Chicago refused Thursday to undo a lower court’s ruling that prevents President Donald Trump from deploying National Guard troops within Illinois.
A unanimous three-judge panel on the 7th U.S. Circuit Court of Appeals found no clear error in U.S. District Judge April Perry’s Oct. 9 ruling, and it found “the facts do not justify the president’s actions in Illinois” under the law Trump has cited for deployment.
The panel also used the Trump administration’s own rhetoric against it, given that the law allows the president to federalize National Guard troops if he is “unable … to execute the laws of the United States.”
“The administration has been proclaiming the success of its current efforts to enforce immigration laws in the Chicago area,” the panel wrote. “The administration accordingly is also unlikely to succeed on this argument.”
Bottom line: The deployment of National Guard troops remains blocked in Illinois.
The 18-page opinion came from Judges Ilana Rovner, David Hamilton and Amy St. Eve. Rovner was nominated to the appellate court by President George H.W. Bush; Hamilton was nominated by President Barack Obama; and St. Eve was nominated by Trump.
It confirms that the appellate court will not undo Perry’s ruling while it’s appealed by the Trump administration. The court had also refused to immediately undo Perry’s ruling in an order over the weekend.
However, the appeals court did agree on both occasions not to block Trump from federalizing National Guard troops.
The decision comes four months after the 9th U.S. Circuit Court of Appeals undid a temporary restraining order blocking National Guard deployment in Los Angeles. The new decision might be enough to prompt the Supreme Court to step in.
In fact, a White House spokesperson told the Chicago Sun-Times, “we expect to be vindicated by a higher court.”
“The facts haven’t changed,” White House spokeswoman Abigail Jackson said. “Amidst ongoing violent riots and lawlessness, that local leaders like [Gov. JB] Pritzker have refused to step in to quell, President Trump has exercised his lawful authority to protect federal officers and assets.
“President Trump will not turn a blind eye to the lawlessness plaguing American cities.”
To deploy National Guard troops into Illinois, California and Oregon, Trump has invoked a federal law that allows the president to call into federal service members of any state’s National Guard if there is an invasion or rebellion — or if the president is “unable with the regular forces to execute the laws of the United States.”
The Trump administration has not said there’s been an invasion, but it has pointed to the other two circumstances in the law.
The 7th Circuit panel actually agreed with the 9th Circuit, finding that the president should be granted “a great level of deference” on the matter. Still, it concluded that “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,” the court wrote.
“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,” it added.
As for the president’s ability to execute the law, the court noted that an immigration processing facility in Broadview remains open, and immigration arrests and deportations “have proceeded apace in Illinois over the past year.”
The panel also wrote that “the public has a significant interest in having only well-trained law enforcement officers deployed in their communities and avoiding unnecessary shows of military force in their neighborhoods, except when absolutely necessary and justified by law.”
Because the 7th and 9th Circuits agreed that the president deserves a great deal of deference on the law in question, it might not be enough to get the Supreme Court’s attention under normal circumstances.
That’s according to Julian Davis Mortenson, a professor of law at the University of Michigan who has studied presidential power.
Mortenson doesn’t claim the ability to predict what the Supreme Court might do. Still, he pointed to the political stakes at play, and the way the high court has operated in the first year of Trump’s second term.
“There’s enough at this point — especially given the outcome of the case — for me not to be surprised if the Supreme Court took it up,” Mortenson said.
Contributing: Tina Sfondeles