On Thursday, Judge April Perry will face a historic test in Chicago: whether to let President Donald Trump deploy the Texas National Guard into the city. More precisely, she must decide how much deference to give the president’s judgment that the statutory requirement for federalizing the guard, either a “rebellion” or an “unable with the regular forces to execute the laws of the United States,” has been met.
The courts that handled the Los Angeles and Portland deployments trapped themselves by choosing deference, leaving them vulnerable to Trump’s endless escalation; Perry should avoid the same mistake.
The conventional wisdom has long held that judges must defer to the president’s determination that a “rebellion” or “unable with the regular forces to execute the laws of the United States.” exists, thereby justifying federalization of the National Guard.
Judicial restraint once rested on the assumption that internal Justice Department opinions and executive norms would keep these powers in check. They limited deployments to a “last resort” or when civilian authorities “cannot or will not provide adequate protection” or when there was a total failure of civil authority. But those guardrails have eroded: the opinions are ignored, the norms discarded and the office that produced them sidelined.
Judges therefore need to acknowledge the obvious: There is no “rebellion” or “unable with the regular forces to execute the laws of the United States,” in Los Angeles, Chicago or Portland — so Trump has no lawful basis to federalize the National Guard. Yes, there has been physical resistance to U.S. Immigration and Customs Enforcement’s deportation raids and blockades of entrances to federal facilities. But it is hard to take seriously the idea that these acts of resistance amount to “rebellions,” which are typically organized, open and armed attempts to seize territory. And while such resistance can impede ICE’s operations, confrontations with law enforcement occur every day. By long-standing tradition, the threshold for federal intervention requires that civil authorities be so overwhelmed that law enforcement is effectively paralyzed — usually through the physical occupation of entire neighborhoods or cities.
Ultimately, the courts in California and Portland chose a deferential approach and left themselves vulnerable to Trump’s aggression. It didn’t start that way. The first to rule, the District Court in California, took the right approach, using its own judgment to determine that federalization was unlawful. But on appeal, the Ninth Circuit clung to the old model of deference, overturning the district court’s temporary restraining order.
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The lower courts in Los Angeles and Portland were then bound by that deference and did their best to work within it. The Los Angeles District Court managed to strike down parts of the deployment, but only on narrow, fact-specific grounds — restrictions the Trump administration could easily sidestep in the future and will likely avoid triggering in Portland and Chicago.
The Portland District Court — bound by Ninth Circuit precedent — did issue a temporary restraining order while claiming to follow that deferential standard, but in reality, it may have gone further, scrutinizing the administration’s rationale more aggressively than precedent allows. That puts Portland’s ruling in tension with the very authority that governs it, making it vulnerable on appeal. And it will take only a slight escalation in street unrest to satisfy the threshold the Ninth Circuit set — forcing the Portland court to reverse itself and allow the deployment.
Perry now faces the same trap. If she gives the president broad discretion to decide whether a rebellion exists, she risks repeating the Ninth Circuit’s mistake — inviting escalation that could turn Chicago into the next test case for unchecked executive power over deploying the military on America’s streets.
Joshua Braver is an assistant law professor at the University of Wisconsin Madison.
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