Over the last two weeks, President Donald Trump has barely managed to go a day without threatening to send the National Guard to Chicago — or New York, Baltimore, Seattle, New Orleans or any other American city.
After ordering thousands of troops to Los Angeles in June and more to Washington, D.C. in August, Trump once again floated the idea of sending the military to Chicago last week as he signed an executive order that primes the National Guard “for rapid mobilization,” across the country.
Despite their dubious legality, Trump’s previous troop deployments — particularly in LA this summer and D.C. during his first term — have gone largely unchecked by the other branches of government. Legal experts warn that the mostly feeble response from the courts and Congress to Trump’s power grab could set the stage for the president to take his show of military force on the road, coming soon to a Democratic-led city near you.
“Chicago is a killing field right now, and they don’t acknowledge it,” Trump told reporters gathered in the Oval Office, referring to a city that just enjoyed its safest summer in a half-century.
Since then, Trump has repeated a dictatorial contention, that unnamed throngs along Michigan Avenue cry out for a firm autocratic hand like his.
“I have the right to do anything I want to do. I’m the President of the United States of America,” Trump said. “If I think our country is in danger, and it is in danger in these cities, I can do it.”
It’s not hard to see why Trump feels emboldened.
While a district court judge in California this week did issue an order saying the administration violated the Posse Comitatus Act, which generally prohibits using the military for domestic law enforcement purposes, he did not rule that the troop deployment itself was illegal. In fact, the Ninth Circuit held the opposite: that Trump was legally justified in deploying the National Guard to LA. And so, nearly three months later, around 300 guardsmen remain on active, federal duty in Southern California.
And it’s taken nearly a month for Washington to launch a legal challenge against the deployment there, which faces additional hurdles due to the district’s sub-state legal status.
So far, the White House has relied on obscure statutory footing and novel legal doctrines to defend the deployments in court, to mixed results. It has avoided using the Insurrection Act of 1807 — a more common, if controversial, option that gives the president sweeping authority to use troops to quell violence, suspend Posse Comitatus and enforce domestic laws.
Courts have been slow to stop Trump and Congress isn’t treating these actions as serious cases of presidential overreach, warned David Janovsky, acting director of the Project on Government Oversight’s Constitution Project.
“I don’t know what the next meaningful limit is,” he said.
How Far Could Trump Push?
The order Trump signed last week directs Defense Secretary Pete Hegseth to ensure each state’s Army and Air National Guard organizes units “resourced, trained,” and at the ready “for rapid mobilization,” to “assist Federal, State, and local law enforcement in quelling civil disturbance.”
The directive is a preliminary step to repeating the LA and DC experiments in other cities, said Chris Mirasola, a professor at the University of Houston Law Center.
“There are a range of possibilities here, from the model used to deploy the non-D.C. [National Guard] in D.C. to the model used to deploy the [California National Guard] in L.A,” he wrote in an email.
When Trump deployed the D.C. National Guard, he did so under “Title 32.” This hybrid status allows the president to ask a state’s National Guard to perform federal missions while remaining under state control. Normally, this means the president has to get the governor’s permission, but in D.C. the president — not the district’s mayor — controls the Guard. Critically, under Title 32, Guardsmen are not federalized and thus are not subject to the Posse Comitatus Act.
In 2020, Mayor Muriel Bowser objected to the deployment of National Guardsmen from 11 states and D.C. as protesters took to the streets after George Floyd’s murder. Then-Attorney General William Barr responded by invoking Sec. 502(f) of Title 32, saying the other states were responding to the president’s request for National Guard assistance ensuring “protection of federal functions.”
It’s now an open question how far Trump could push that reading of Title 32. If he tried to rely on that authority to send National Guard units from Texas to Chicago — as Illinois Gov. JB Pritzker (D) recently warned is in the works — Trump would invite legal challenges, said Mirasola.
“None of this has been litigated before, so there’s a decent amount of uncertainty about how the federal courts would respond to using section 502(f) for these kinds of domestic military missions,” Mirasola said.
Pritzker, or any governor objecting to another state’s National Guard being sent into their cities, could sue under Article IV of the Constitution or the Emergency Management Assistance Compact, an interstate agreement ratified by Congress in 1996, Georgetown Law professor Steve Vladeck suggested in a recent blog post. Under either argument, before one state could deploy their National Guardsmen into another state, they’d need to get permission first.
Lengthy Hearings ‘While Troops Are on the Streets’
But even though the executive order makes specific reference to Title 32, Trump wouldn’t be limited to just that law should he try to deploy the newly organized rapid-response National Guard units. It may be that the decree refers to Title 32 merely to justify the federal rapid-deployment training those units receive, not their subsequent deployment, Mirasola noted.
Trump could instead invoke an obscure section of Title 10, deploying troops under full federal control like he did in Los Angeles in June.
When that happened, California rushed to court, seeking an emergency order to block the deployment, which Judge Charles Breyer granted. But that order was itself immediately paused by the Ninth Circuit Court of Appeals, which held the president was “likely… within his authority.”
“If the Judiciary’s idea of serving as a check is a months-long hearing process while troops are on the street, that’s not very reassuring,” Janovsky said, speaking before Breyer’s decision this week.
The statute Trump relied on in LA allows a president to “call into Federal service members and units of the National Guard of any State in such numbers he considers necessary,” when there is a foreign invasion, rebellion, or when the president “is unable with the regular forces to execute the laws of the United States.”
Even though that statute seems to contemplate a kind of disruption on par with invasion or rebellion — lawlessness akin to a warzone, not run-of-the-mill protesting — the Ninth Circuit declined to second-guess the president’s determination that the “predicate condition” for federalizing troops existed.
According to Mirasola, the Ninth Circuit’s decision “affirmed an extremely broad interpretation of the text of that statute, a really broad deference to the executive branch,” providing the White House some persuasive authority to rely on in future potential lawsuits questioning a deployment.
“The courts could decide to be a lot more skeptical of the federal government,” Janovsky said. “That is sorely needed and deserved.”
In relying on this law, however, Trump eventually ran afoul of Posse Comitatus, as Judge Breyer meticulously noted in his decision. In that litigation, the administration argued that presidents held an inherent power to use the military to protect federal property and functions.
“Judge Breyer’s opinion both refutes this assertion of authority and seems to suggest that he recognizes perhaps a more limited version of it as existing to protect federal properties,” Mirasola noted, adding this could give the administration wiggle room in future cases.
‘The Big Heavy Gun’
While the administration risks losing lawsuits under either of the legal justifications they’ve used before, the Insurrection Act remains a curiously unused option. By invoking the law, the president can federalize the National Guard and deploy it — and other branches of the military — to conduct federal law enforcement actions, allowing him to sidestep the Posse Comitatus Act.
Trump reportedly wanted to invoke the Insurrection Act in Washington amid the protests that followed the murder of George Floyd in 2020, but was talked out of it by his aides.
It seems like politics, not law, is the main reason why Trump has held off, so far, from using the Insurrection Act in this administration.
“The insurrection act is the big heavy gun,” said William Banks, professor emeritus at Syracuse University College of Law. “It was intended to be utilized, if at all, when all hell is broken loose. It’s for extreme circumstances.”
Mirasola also suggested that the infamy of the Insurrection Act has stayed the administration’s hand so far, or perhaps that it has avoided using it to order these deployments because the real mission isn’t protecting federal agents, reducing crime or enforcing the law.
“If your goal is to mainly do a show of force — military members in a city to show your dominance — then really, all you need is to get them there and have them doing something, even if it’s not all that meaningful,” he said. “I think we’re seeing that in DC, where you have national guardsmen doing, oftentimes quite menial tasks.”
In D.C., the guardsmen have largely been seen idling near tourist attractions, picking up garbage and raking leaves, all while heavily armed.
The White House declined to comment on what authority Trump would rely on in a future deployment. “We wouldn’t get ahead of the President on any potential announcements,” a White House official wrote in an emailed response.
As it is written, the Insurrection Act is very broad. A president can send troops into a state whenever he finds that “unlawful obstructions, combinations, or assemblages, or rebellion… make it impracticable to enforce the laws of the United States.”
“The most worrisome phrase in the Insurrection Act is ‘make it impracticable to enforce the laws of the United States.’ There’s a lot of breadth,” Janovksy said. “[And], so far, [Trump] has gotten away with everything he’s done without even invoking the Insurrection Act.”
Even if the White House’s lawyers didn’t push for such an expansive interpretation of the act, Janovsky noted that Trump called migrants at the southern border an “invasion” to authorize mass deportations, declared a national emergency to justify tariffs, and used a “crime emergency,” to take control of D.C.’s police department. So far, the courts have been loath to challenge Trump’s declarations.
“We have obviously seen the administration play very fast and loose with the definition of a rebellion,” Janovsky said. “So, it’s dangerous, for sure. It’s pretty easy to imagine how they would try it.”
“It’s just not actually legal,” he added.
Banks said that invoking the Insurrection Act would present its own legal headaches for Trump if a state sued to stop it, “exposing him to have to prove the state’s inability or unwillingness to meet the challenge themselves.”
But like the Title 32 hypothetical, what would happen in court is anyone’s guess, Banks said.
“You asked about cases — there are none,” he said. “Part of the reason is that the law gives the president such broad discretion. But another reason is that there have been so few invocations of the act.”
The Insurrection Act was last used in 1992, when California asked for President George H.W. Bush’s help quelling the Rodney King riots in LA.
Even though Janovsky doesn’t believe the law enables a president to simply proclaim a state of emergency into existence, he doesn’t think that’ll stop Trump from trying.
“It’s already happening, right?” Janovsky said. “I think we’re pretty clearly out of the realm of hypothetical, you know, between LA, D.C. and pretty concrete talk of Chicago.”
“We obviously haven’t reached the worst case scenario yet,” Janovsky said. “But it’s real.”
Jacob Knutson contributed to this report.