I am a Chicago resident and want to make sure everyone knows that several hundred Illinois National Guard members are still federalized. They have never been deployed to the streets and are continuing to live on a training base about 50 miles from Chicago. Trump recently extended their orders until mid April 2026. So, for almost 4 months they have been sitting at a training facility and will continue to do so for the next 4 months.
I noted the continued federalization in the "What now?" section, though not the numbers, and the possibility that the Seventh Circuit could be called upon now to lift its stay of that portion of the district court order — which would allow for an end to the federalization under Perry's order.
Let's hope they're receiving training while they're on that training base. One of the best things they could do this January is carefully consider Common Sense, a pamphlet published in January 1776 by Thomas Paine, six months before the Declaration of Independence 250 years ago. Common Sense became so common and made so much sense that people commonly claimed, “Without the pen of Paine, Washington’s sword would have been raised in vain.”
The following are some of Paine's pearls:
“These are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands it now, deserves the love and thanks of man and woman.” “Now is the seed-time of continental union, faith and honor.”
“The cause of America is in great measure the cause of all mankind.” “The Sun never shined on a cause of greater worth. ‘Tis not the affair of a City, or a County, a Province, or a Kingdom; but of a Continent—of at least one eighth part of the habitable Globe. ‘Tis not the concern of a day, a year, or an age; posterity are virtually involved in the contest, and will be more or less affected even to the end of time, by the proceedings now.” People in power “declaring war against the natural rights of all mankind, and extirpating the defenders thereof from the face of the earth, is the concern of every man to whom nature hath given the power of feeling.”
“Of more worth is one honest man to society, and in the sight of God, than all the crowned ruffians that ever lived.” To prove his point, Paine savagely ridiculed kings, those who would be kings, and those who bowed down to kings.
“Men” use “names without understanding them.” That included “the unmeaning name of king.” “Men who” see “themselves born to reign, and others to obey” are “poisoned by importance; and” their “world” clearly “differs so materially from the [real] world” that “when they succeed” in obtaining power, they “are frequently the most ignorant and unfit of any” to actually govern. “Most wise men, in their private sentiments, have ever treated” the pretenses of such people in power “with contempt; yet” such pretenses are among “those evils” which, “when once established,” are “not easily removed.”
Because they have been federalized, the 300 Illinois National Guard members are being paid by the federal government. The same was true of the 200 Texas National Guard members who were sent to Illinois, but returned to Texas once Bovino and his gang of thugs left Chicago (Bovino and company have since returned and left again).
As of November the Army said it has spent 20 million on this boondoggle.
Gorsuch's comment interests me. He writes: "And if, as all parties seem to assume, today's Guard is the successor to the militia of the founding era ..." Does this have any relevance to the 2nd Amendment? If the Guard = the Militia, does the 2nd apply, specifically and solely, to the National Guard?
Ken, kudos to you for thinking about the Second Amendment. James Madison in January 1788 wrote something about the rights (later) secured by the Second Amendment, which Madison and others in the First Congress wrote and proposed in 1789) in a way that sheds light on the unconstitutionality of Trump's abuse of the National Guard here.
In Federalist No. 46, Madison addressed issues that are relevant to the Court's conduct here and relevant more generally to the Second Amendment. Madison viewed the individual right to keep and bear arms as a sort of sword of Damocles dangling over the head of federal officials. He saw the individual right to keep and bear arms as essential to the moral courage and efficacy of our public servants in state governments in helping secure our rights against federal officials.
Highly relevant to the case before the Court, Madison emphasized that the standing army envisioned in 1788-1789 was "an army of [no] more than twenty-five or thirty thousand men" who would be supported by (or potentially find themselves facing) "militia amounting to near half a million of citizens with arms in their hands."
From Federalist 46:
Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. . . . Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people.
Robert, let's start with the Ninth Amendment. What makes you think it was not an instruction? And if you want, please feel free to share why you think Heller violated our Constitution.
Robert, law necessarily is instruction. That’s the point of requiring law to be in writing. That’s the point, specifically, of the prohibition (instruction to Congress and to state legislatures and all judges) regarding ex post facto laws.
If Heller was wrongly decided, then you necessarily are saying that SCOTUS justices violated our Constitution. That’s what “wrongly deciding” the meaning of our Constitution necessarily means.
Ken, as SCOTUS did a good of analyzing in District of Columbia v. Heller, the right to keep and bear arms is an individual right that is secured even when people are not acting in the service of any state or our nation. The rights explicitly secured by the Second Amendment implicitly acknowledged and secured implicit rights that are secured explicitly by the Ninth Amendment.
The Ninth Amendment is an instruction (especially to all judges) governing how to construe (or not construe) our Constitution. Our Constitution "shall not be construed to deny or disparage" any "rights" that are "retained by the people" on the (specious) grounds that only "certain rights" were included in any "enumeration in the Constitution."
As SCOTUS emphasized in Heller our rights implicitly secured by the Second Amendment, most fundamentally and most importantly, are the rights of defense and preservation, including (but not limited to) the rights of self-defense or self-preservation, including hunting animals for food. So, no, the Second Amendment doesn't apply specifically and solely, to the National Guard, and more importantly, the Second Amendment serves to secure rights much more important and far more fundamental that merely keeping and bearing arms.
If the t regime spent less time in front of the SCOTUS and more time working with their majorities in both houses trying to pass legislation that would help people instead of causing so much pain and harm, they wouldn't be the lamest ducks to occupy the hill in the history of the United States. But hats off to the court for making the right call.
Agreed … but Trump is lazy; he thinks he can bluster his way without proof or even research. Besides, SCOTUS has repeatedly bent over backwards to accommodate him.
When has Trump or his lackys shown any desire to do anything to help anyone other than themselves and the insanely rich? There is no reason to think that will ever change. If they held every seat in Congress they'd not do anything to benefit the vast majority of Americans.
Completely agree. Unfortunately, he is owned by not only the bro-ligarch's but also by Putin. IMHO billionaires should never be allowed to hold public office. Anywhere. Ever.
Trump embodies the magical thinking of the GOP that once cultural issues, such as immigrants, are resolved to the GOP's liking, then "true" citizens can help themselves (not government's responsiblity to help, that creates takers) by not having to compete with the foreignors infesting out country (CF JD Vance on how housing stock will be plentiful once immigrants are cleaned out). Then, milk and honey will flow throughout the land.
It is such a relief to have even a ray of hope on this.
I would hasten to point out that the WA National Guard has been super busy with helping victims of our flooding. This is what the Guard is FOR. WTF would have happened if trump had tried to drain our personnel to "enforce the law" in some other state.
Looking at Kavanaugh’s footnote in his concurrence, it appears to me that he’s potentially backing away from the position he expressed in his concurrence in Noem. In Noem, he asserted that probable cause for a stop could include apparent racial characteristics in certain situations. Here, he cites the well-established position that the Fourth Amendment precluded consideration of race. Interesting.
He hates ICE's detention of citizens being called "Kavanaugh" stops and is trying to cleanse his name. Too late, drunken fool. Oh, that Dr. Blasey-Ford's courageous testimony had been effective.
Another fine review! Especially the part about Justice Gorsuch … frankly the man bewilders me. With absolutely no evidence at all, I wonder if he’s trying to position himself as Chief Justice in the Project 2025 Forever Reich.
Oh so suddenly Alito and Gorsuch don’t want to reach out and decide issues/arguments not presented or make substantive, unbriefed decisions on the shadow docket. It would be nice if they did that consistently. Ie actually follow the rule of law.
Glad to hear that we are paying for their vacation in probably some godawful barracks in the suburbs. Sorry guys. Sorry taxpayers. The petition to the court probably said pretty please so don’t forget that next time. Important that we remain alert to violations of the law and blatant declarations of presidential privilege when it is overstepping reasonable limits. Midterms will tell us how many people really think we’re going in the wrong direction.
Perhaps this is the wrong place to ask, and perhaps the wrong case, but in the end, supposing SCOTUS finally decide that this is not OK, what is the penalty? Does anyone go to jail or is anyone removed from government? And if not this case, which, if any, of these regime actions that seem to be unconstitutional to me, could result in a “red card” removing the players from the field, to use a soccer analogy? Or is this all an intellectual excercise that will create a small library to be laughed at for ages, like the middle age treatises on how many angels could dance on the tip of a needle?
The buried lede: "It was, in short, an effort to address the “Kavanaugh stop” critique — without so much as a reference to his opinion or even the Supreme Court’s order in Noem v. Vasquez Perdomo."
Does Justice Kavanaugh’s footnote have any bearing on future attempts to claim Qualified Immunity by ICE or its agents? It seems to me that it could, but I’m not an expert on that jurisprudence.
As a student of past SCOTUS rulings, and as a retired attorney, I believe the following is true: one can ALWAYS predict how Alito, Thomas and Gorsuch will vote on ANY issue, before the ruling is issued. I would bet large sums of money on the outcome in 99% of the cases.
Someone recently raised the Article IV issue and seems to have caught at least Gorsuch’s attention. Also isn’t it possible that either Roberts or Barrett dissented silently?
No, because Kavanaugh only concurred in judgment, and you need five justices to agree to an order for it to be an order of the court. (Otherwise, there would have been a very brief order denying the stay, and then multiple concurring opinions. Here, though, a majority had to agree to the language of the order — and Kavanaugh did not, along with Thomas, Alito, and Gorsuch dissenting. That leaves only five justices to constitute the order’s majority.)
I am a Chicago resident and want to make sure everyone knows that several hundred Illinois National Guard members are still federalized. They have never been deployed to the streets and are continuing to live on a training base about 50 miles from Chicago. Trump recently extended their orders until mid April 2026. So, for almost 4 months they have been sitting at a training facility and will continue to do so for the next 4 months.
I noted the continued federalization in the "What now?" section, though not the numbers, and the possibility that the Seventh Circuit could be called upon now to lift its stay of that portion of the district court order — which would allow for an end to the federalization under Perry's order.
Let's hope they're receiving training while they're on that training base. One of the best things they could do this January is carefully consider Common Sense, a pamphlet published in January 1776 by Thomas Paine, six months before the Declaration of Independence 250 years ago. Common Sense became so common and made so much sense that people commonly claimed, “Without the pen of Paine, Washington’s sword would have been raised in vain.”
The following are some of Paine's pearls:
“These are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands it now, deserves the love and thanks of man and woman.” “Now is the seed-time of continental union, faith and honor.”
“The cause of America is in great measure the cause of all mankind.” “The Sun never shined on a cause of greater worth. ‘Tis not the affair of a City, or a County, a Province, or a Kingdom; but of a Continent—of at least one eighth part of the habitable Globe. ‘Tis not the concern of a day, a year, or an age; posterity are virtually involved in the contest, and will be more or less affected even to the end of time, by the proceedings now.” People in power “declaring war against the natural rights of all mankind, and extirpating the defenders thereof from the face of the earth, is the concern of every man to whom nature hath given the power of feeling.”
“Of more worth is one honest man to society, and in the sight of God, than all the crowned ruffians that ever lived.” To prove his point, Paine savagely ridiculed kings, those who would be kings, and those who bowed down to kings.
“Men” use “names without understanding them.” That included “the unmeaning name of king.” “Men who” see “themselves born to reign, and others to obey” are “poisoned by importance; and” their “world” clearly “differs so materially from the [real] world” that “when they succeed” in obtaining power, they “are frequently the most ignorant and unfit of any” to actually govern. “Most wise men, in their private sentiments, have ever treated” the pretenses of such people in power “with contempt; yet” such pretenses are among “those evils” which, “when once established,” are “not easily removed.”
And who is paying for this billeting? This seems to me a vital question given the recent ruling
Because they have been federalized, the 300 Illinois National Guard members are being paid by the federal government. The same was true of the 200 Texas National Guard members who were sent to Illinois, but returned to Texas once Bovino and his gang of thugs left Chicago (Bovino and company have since returned and left again).
As of November the Army said it has spent 20 million on this boondoggle.
Gorsuch's comment interests me. He writes: "And if, as all parties seem to assume, today's Guard is the successor to the militia of the founding era ..." Does this have any relevance to the 2nd Amendment? If the Guard = the Militia, does the 2nd apply, specifically and solely, to the National Guard?
Ken, kudos to you for thinking about the Second Amendment. James Madison in January 1788 wrote something about the rights (later) secured by the Second Amendment, which Madison and others in the First Congress wrote and proposed in 1789) in a way that sheds light on the unconstitutionality of Trump's abuse of the National Guard here.
In Federalist No. 46, Madison addressed issues that are relevant to the Court's conduct here and relevant more generally to the Second Amendment. Madison viewed the individual right to keep and bear arms as a sort of sword of Damocles dangling over the head of federal officials. He saw the individual right to keep and bear arms as essential to the moral courage and efficacy of our public servants in state governments in helping secure our rights against federal officials.
Highly relevant to the case before the Court, Madison emphasized that the standing army envisioned in 1788-1789 was "an army of [no] more than twenty-five or thirty thousand men" who would be supported by (or potentially find themselves facing) "militia amounting to near half a million of citizens with arms in their hands."
From Federalist 46:
Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. . . . Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people.
Heller was wrongly decided. The 9th amendment was not an instruction and this current administration is illegitimate.
Robert, let's start with the Ninth Amendment. What makes you think it was not an instruction? And if you want, please feel free to share why you think Heller violated our Constitution.
Constitutional amendments are law, instruction is not. I said Heller was wrongly decided, not that it “violated” the Constitution.
Robert, law necessarily is instruction. That’s the point of requiring law to be in writing. That’s the point, specifically, of the prohibition (instruction to Congress and to state legislatures and all judges) regarding ex post facto laws.
If Heller was wrongly decided, then you necessarily are saying that SCOTUS justices violated our Constitution. That’s what “wrongly deciding” the meaning of our Constitution necessarily means.
Ken, as SCOTUS did a good of analyzing in District of Columbia v. Heller, the right to keep and bear arms is an individual right that is secured even when people are not acting in the service of any state or our nation. The rights explicitly secured by the Second Amendment implicitly acknowledged and secured implicit rights that are secured explicitly by the Ninth Amendment.
The Ninth Amendment is an instruction (especially to all judges) governing how to construe (or not construe) our Constitution. Our Constitution "shall not be construed to deny or disparage" any "rights" that are "retained by the people" on the (specious) grounds that only "certain rights" were included in any "enumeration in the Constitution."
As SCOTUS emphasized in Heller our rights implicitly secured by the Second Amendment, most fundamentally and most importantly, are the rights of defense and preservation, including (but not limited to) the rights of self-defense or self-preservation, including hunting animals for food. So, no, the Second Amendment doesn't apply specifically and solely, to the National Guard, and more importantly, the Second Amendment serves to secure rights much more important and far more fundamental that merely keeping and bearing arms.
If the t regime spent less time in front of the SCOTUS and more time working with their majorities in both houses trying to pass legislation that would help people instead of causing so much pain and harm, they wouldn't be the lamest ducks to occupy the hill in the history of the United States. But hats off to the court for making the right call.
Agreed … but Trump is lazy; he thinks he can bluster his way without proof or even research. Besides, SCOTUS has repeatedly bent over backwards to accommodate him.
When has Trump or his lackys shown any desire to do anything to help anyone other than themselves and the insanely rich? There is no reason to think that will ever change. If they held every seat in Congress they'd not do anything to benefit the vast majority of Americans.
Completely agree. Unfortunately, he is owned by not only the bro-ligarch's but also by Putin. IMHO billionaires should never be allowed to hold public office. Anywhere. Ever.
Trump embodies the magical thinking of the GOP that once cultural issues, such as immigrants, are resolved to the GOP's liking, then "true" citizens can help themselves (not government's responsiblity to help, that creates takers) by not having to compete with the foreignors infesting out country (CF JD Vance on how housing stock will be plentiful once immigrants are cleaned out). Then, milk and honey will flow throughout the land.
The GQP, Vance and t embraced hate and campaigned with racism. They ripped off the hoods and bed sheets off a long time ago.
It is such a relief to have even a ray of hope on this.
I would hasten to point out that the WA National Guard has been super busy with helping victims of our flooding. This is what the Guard is FOR. WTF would have happened if trump had tried to drain our personnel to "enforce the law" in some other state.
Looking at Kavanaugh’s footnote in his concurrence, it appears to me that he’s potentially backing away from the position he expressed in his concurrence in Noem. In Noem, he asserted that probable cause for a stop could include apparent racial characteristics in certain situations. Here, he cites the well-established position that the Fourth Amendment precluded consideration of race. Interesting.
Once would like to think so. Or does his right hand know what his right hand is doing?
He hates ICE's detention of citizens being called "Kavanaugh" stops and is trying to cleanse his name. Too late, drunken fool. Oh, that Dr. Blasey-Ford's courageous testimony had been effective.
Another fine review! Especially the part about Justice Gorsuch … frankly the man bewilders me. With absolutely no evidence at all, I wonder if he’s trying to position himself as Chief Justice in the Project 2025 Forever Reich.
Oh so suddenly Alito and Gorsuch don’t want to reach out and decide issues/arguments not presented or make substantive, unbriefed decisions on the shadow docket. It would be nice if they did that consistently. Ie actually follow the rule of law.
Well done, An excellent explainer.
Glad to hear that we are paying for their vacation in probably some godawful barracks in the suburbs. Sorry guys. Sorry taxpayers. The petition to the court probably said pretty please so don’t forget that next time. Important that we remain alert to violations of the law and blatant declarations of presidential privilege when it is overstepping reasonable limits. Midterms will tell us how many people really think we’re going in the wrong direction.
Perhaps this is the wrong place to ask, and perhaps the wrong case, but in the end, supposing SCOTUS finally decide that this is not OK, what is the penalty? Does anyone go to jail or is anyone removed from government? And if not this case, which, if any, of these regime actions that seem to be unconstitutional to me, could result in a “red card” removing the players from the field, to use a soccer analogy? Or is this all an intellectual excercise that will create a small library to be laughed at for ages, like the middle age treatises on how many angels could dance on the tip of a needle?
The buried lede: "It was, in short, an effort to address the “Kavanaugh stop” critique — without so much as a reference to his opinion or even the Supreme Court’s order in Noem v. Vasquez Perdomo."
Does Justice Kavanaugh’s footnote have any bearing on future attempts to claim Qualified Immunity by ICE or its agents? It seems to me that it could, but I’m not an expert on that jurisprudence.
That seems likely, and also that he drew a line in the sand about brief stops for proof or citizenship, which ICE has been routinely ignoring.
Victims of unwarranted seizures should get the same deal as those senators: 500k damages, no immunity for Feds.
A really good covering of this complicated and somewhat hopeful ruling.
It leaves me chilled to think of what this country would be like if Gorsuch, Alito, and Thomas had their way.
Such a relief and honestly really fun to hate read alito's frothing at the mouth dissent
As a student of past SCOTUS rulings, and as a retired attorney, I believe the following is true: one can ALWAYS predict how Alito, Thomas and Gorsuch will vote on ANY issue, before the ruling is issued. I would bet large sums of money on the outcome in 99% of the cases.
Someone recently raised the Article IV issue and seems to have caught at least Gorsuch’s attention. Also isn’t it possible that either Roberts or Barrett dissented silently?
No, because Kavanaugh only concurred in judgment, and you need five justices to agree to an order for it to be an order of the court. (Otherwise, there would have been a very brief order denying the stay, and then multiple concurring opinions. Here, though, a majority had to agree to the language of the order — and Kavanaugh did not, along with Thomas, Alito, and Gorsuch dissenting. That leaves only five justices to constitute the order’s majority.)