By Andrew Chung
(Reuters) -The U.S. Supreme Court signaled on Wednesday that it is actively debating how to interpret the wording of a law that limits when a president can use members of the National Guard in a challenge to President Donald Trump’s bid to dispatch troops to the Chicago area.
The justices ordered the challengers – the state of Illinois and the City of Chicago – as well as Trump’s Justice Department, to file written briefs by November 10 answering the question of what the words “regular forces” in the law means.
The law at issue lets a president deploy state National Guard troops to suppress a rebellion or if he is “unable with the regular forces to execute the laws of the United States.”
The Justice Department asked the court in an emergency filing on October 17 to lift Chicago-based U.S. District Judge April Perry’s decision to block the Guard deployment while litigation in the challenge continues.
Perry ruled that Trump likely violated the law establishing preconditions for federalizing Guard troops, as well as the state’s rights under the U.S. Constitution’s 10th Amendment.
The National Guard serves as state-based militia forces answering to state governors except when called into federal service by the president.
The case has been characterized by starkly different portrayals of the protests against the administration’s aggressive immigration enforcement in and around Chicago.
The administration has said that the words “regular forces” mean that the president can call up the National Guard if non-military federal agents who regularly enforce federal laws cannot properly do so.
In an October 10 written ruling, Perry said that historical sources indicate that “regular forces” means only members regularly enlisted in the military, including the Army and Navy, as opposed to the National Guard.
Perry wrote that “in order for the President to call forth the militia to execute the laws, the President must be incapable with the regular forces – that is, lacking the power and force with the military alone – to execute the law.”
Trump’s administration “made no attempt to rely on the regular forces before resorting to federalization of the National Guard,” Perry said, adding that there are other limits on the use of the military for domestic law enforcement purposes.
The Chicago-based 7th U.S. Circuit Court of Appeals unanimously upheld Perry’s decision. Noting the debate over the meaning of “regular forces,” the three-judge panel said that the administration had not met its burden under either standard.
“Even applying great deference to the administration’s view of the facts … there is insufficient evidence that protest activity in Illinois has significantly impeded the ability of federal officers to execute federal immigration laws,” the appeals court said.
Sporadic disruptions during protests “have been quickly contained by local, state, and federal authorities. At the same time, immigration arrests and deportations have proceeded apace,” the appeals court added.
(Reporting by Andrew Chung; editing by Diane Craft)
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