Trump admin asks SCOTUS for an order allowing it to deploy troops in Chicago immediately

Four judges — two Republican and two Democratic appointees — have rejected the Trump administration's arguments in the Illinois case. So, DOJ ran to the justices on Friday.

The Trump administration went to the U.S. Supreme Court on Friday afternoon, seeking an immediate order allowing President Donald Trump to deploy members of the National Guard in Chicago.

The shadow docket application came a day after a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit unanimously denied the Justice Department’s request for a stay of a district court’s temporary restraining order pending DOJ’s appeal.

The request sets up one of the most stark decisions that the justices will have faced since Trump retook office nearly nine months ago.

A week ago, U.S. District Judge April Perry, a Biden appointee, issued the TRO blocking the federalization and deployment of the National Guard in Illinois. It echoed a series of orders earlier in the month from U.S. District Judge Karin Immergut, a Trump appointee, in Oregon blocking federalization and deployment there.

The Seventh Circuit — first via an administrative stay and then in its order on the stay pending appeal — had allowed the federalization to remain in effect while litigation is ongoing, but kept the injunction against deployment in place. This was the approach taken by a panel of the U.S. Court of Appeals for the Ninth Circuit, with an administrative stay, when considering DOJ’s stay request as to the Oregon TRO as well.

In Friday’s application to the Supreme Court in the Illinois case, Solicitor General John Sauer — Trump’s former personal lawyer — told the court that “[t]hat result eviscerates the President’s order.”

Of course, he’s pretty much right, but that is because the appeals court panel — which consisted of Judges Ilana Rovner, a George H.W. Bush appointee; David Hamilton, an Obama appointee; and Amy St. Eve, a Trump appointee — found that DOJ was not likely to succeed in showing that Trump “lawfully federalized the Guard” under 10 USC 12406.

What is DOJ asking for?

DOJ wants Perry’s TRO to be blocked “in its entirety” — allowing the deployment of Illinois National Guard and Texas National Guard in Chicago — while litigation over the case challenging Trump’s ability to deploy the National Guard is ongoing.

Additionally, DOJ asked for an immediate administrative stay — to “allow the Armed Forces to provide the protection that the President has directed.“

In short, this is one of those situations that I discussed on October 13 in the context of Justice Amy Coney Barrett’s comments on Fox News. Although DOJ is seeking a shadow docket ruling — a “preliminary“ ruling that Barrett insisted will not have “finally resolved the issue“ — a ruling giving Sauer what he is seeking will mean there will be troops deployed in Chicago.

As Perry wrote in her October 10 opinion:

[T]he significance of the public’s interest in having only well-trained law enforcement officers deployed in their communities and avoiding unnecessary shows of military force in their neighborhoods cannot be overstated. Chicago’s history of strained police- community relations, which has stemmed in part from lack of police training and inappropriate uses of force, is well-documented. … To add to this milieu militarized actors unfamiliar with local history and context whose goal is “vigorous enforcement” of the law … is not in the community’s interest.

It is, however, that “vigorous enforcement” that Sauer is now asking the Supreme Court to allow the administration to embark on — federal law, the Constitution, and facts on the ground notwithstanding.

Now, the question is whether the Supreme Court, which has repeatedly sided with the Trump administration in its shadow docket requests, will go along with Trump here, where it is a question of literal boots on the ground — in American cities.

A response was requested and is due by 5 p.m. ET Monday.