Trump claims unchecked power — and challenges the Constitution

On Nov. 10, the Trump administration submitted supplemental arguments to the Supreme Court claiming that no court — including the Supreme Court itself — can question the president’s ability to deploy military troops against U.S. cities. 

“The President’s determination to call up the National Guard is a core exercise of his power as Commander in Chief over military affairs, based on an explicit delegation from Congress,” Trump’s lawyers wrote. “That determination is not judicially reviewable at all; at minimum, it is entitled to extremely deferential review, under which (Trump’s deployment) should be upheld.” 

Claiming that Trump called up the National Guard in Chicago “in light of the violent, organized resistance” faced by Immigration and Customs Enforcement agents, the attorneys insisted his decision is not subject to judicial review under Martin v. Mott, a nearly 200-year-old case that stemmed from the War of 1812. In 1827, the court ruled that military subordinates could not make their “own determination whether an imminent threat of invasion existed.” Although the ruling is often incorrectly cited by the Trump administration, it did not prohibit or even discuss judicial review of military deployments — foreign, domestic or otherwise. 

Most Americans have a strong moral resistance to military intrusion into civilian affairs. According to public polling, a bipartisan majority opposes sending military troops into U.S. cities in the absence of a foreign threat.

That resistance is rooted in tradition dating back to the American Revolution. After living under the tyranny of King George III, whose hated armed troops ate their food and slept in quarters the colonists were forced to provide under the Quartering Act of 1765, the drafters of the Constitution held a widespread fear of a national standing army, which they believed posed a threat to individual liberty and the sovereignty of the separate states. Because of that distrust, the founders carefully apportioned responsibility over the “militia” — today’s National Guard — between the federal government and the states.

The Constitution grants Congress, not the president, the power to deploy the National Guard “to execute the Laws of the Union, suppress Insurrections and repel Invasions.” That foundational constitutional authority in turn supports Title 10 USC 12406, which allows a president to call up the militia — but only under specific, statutorily defined circumstances. It also supports the Posse Comitatus Act, which forbids the use of any part of the federal armed forces to execute laws, except where “expressly authorized by the Constitution or Act of Congress,” reflecting “the deeply rooted and ancient opposition in this country to the extension of military control over civilians.” 

In Chicago and other Democratic-led cities, Trump and administration officials have exaggerated threats to justify their use of excessive force. With daily assistance from Fox News, the administration has accused ICE protesters of significantly more violence than eyewitness accounts, or state and local law enforcement officers, have observed. 

ICE agents, Trump’s lawyers claimed, “are facing incessant violent resistance on the streets of Illinois — including ambushes where their vehicles are rammed by trucks and dangerous projectiles are thrown at them, potentially motivated by bounties placed on their heads by violent gangs and transnational cartels. Federal agents faced with such threats and violence — in Chicago and elsewhere — operate, on a daily basis, in a climate of fear for their lives and safety, forced constantly to focus on self-defense and protection instead of executing federal law.” 

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Eyewitness accounts have largely disputed these claims, and often with video evidence. The examples are numerous. On Oct. 16, ICE agents in Oxnard, a city the agency has targeted with immigration raids, alleged their vehicles were rammed by activists. Video footage showed the federal agents’ vehicles were the aggressors, ramming the other vehicles first. Border Patrol commander Gregory Bovino admitted he lied about an Oct. 23 incident in Chicago. He originally claimed he was hit by a rock before he deployed tear gas at a protest, but evidence showed the rock was thrown afterward. In a chilling incident involving journalists, the Department of Homeland Security claimed a WGN news producer in Chicago went out of her way to assault an ICE agent, but an eyewitness said she was simply standing there while taking video; the producer was later released without charges. 

Importantly, after DHS claimed a “more than 1,000% rise” in assaults on ICE agents, reporting from NPR, along with a review of federal court filings, found no public evidence to support that claim.

To date, there is no known case addressing what happens when an unhinged president deliberately escalates domestic violence and civil unrest in order to justify military deployments.

The Ninth and Seventh Circuit courts have both addressed Trump’s National Guard deployments into American cities. The Ninth Circuit decision is awaiting full en banc review, while the Seventh Circuit concluded that facts on the ground were insufficient to justify the troops’ deployment. The Seventh Circuit decision is now before the Supreme Court, which recently directed the parties to file supplemental brief letters on the meaning of a law allowing a president to call up the National Guard when they are “unable with the regular forces to execute the laws of the United States.”

Both appellate courts rejected Trump’s argument that military deployments are not reviewable, noting the statute’s plain text lists specific predicate conditions before a president can deploy the National Guard, and “nothing in the text…makes the President the sole judge of whether these preconditions exist.”

Trump’s claim that his deployment of military forces is immune from judicial review is ominous in light of his conduct in South America, where he has ordered the summary execution of 66 people in fishing boats based on suspicion alone. His plans for Americans who don’t support him, whom he officially declared “domestic terrorists,” can’t be far behind. 

The high court’s recent request for briefs suggests they don’t buy Trump’s nonjusticiable argument. But if Justices Clarence Thomas or Samuel Alito prevail — and convince other Republican appointees that Trump’s deployment of military force is final and unreviewable — American cities will soon become fully militarized, and the world’s largest police state will advance, changing the American landscape forever.