Attorneys for Illinois on Monday asked the U.S. Supreme Court to deny the Trump administration’s “dramatic” request to be allowed to send National Guard troops to the Chicago area to help with immigration enforcement while the issue is on appeal.
In the 46-page response, the state said it would be inappropriate for the high court to get involved at this stage in the proceedings, where a district court’s decision has yet to be decided on appeal.
The filing also said lawyers for Trump offered “no meaningful response” to the factual basis for U.S. District Judge April Perry’s Oct. 9 temporary restraining order, adding that declarations submitted by a series of immigration officials outlining purported violence against agents and out-of-control protests simply did not hold water.
“In fact, applicants do not even attempt to rebut that much of the activity the declarants complained about was constitutionally protected,” the state response stated.
The filing also noted Perry is scheduled to hold a hearing Wednesday to determine if her two-week restraining order should be extended.
The filing came just hours after a divided appeals court in Oregon overturned a lower court’s decision and ruled that Trump does have the authority to send National Guard troops into Portland to quell what the president has described as a prolonged and violent “siege” of government buildings there.
But in a footnote in that opinion, the 9th U.S. Circuit Court of Appeals noted the situation in Illinois is different because, unlike in Portland, immigration facilities and other government buildings have remained open despite ongoing protests.
Whether the split in the circuits spurs the Supreme Court gets involved in the Illinois case remains to be seen. No arguments or further briefing had been requested by the high court as of Monday evening.
In its filing Friday asking the Supreme Court to issue a stay on Perry’s order, the Trump administration called it part of a “disturbing and recurring pattern” that “improperly impinges on the President’s authority and needlessly endangers federal personnel and property.”
It asked that President Donald Trump be allowed to deploy some 700 troops in Illinois — 300 from the Illinois National Guard and another 400 federalized out of Texas earlier this month.
The petition by the solicitor general also asked for an immediate administrative stay “given the pressing risk of violence,” but the court instead gave Illinois lawyers Monday to respond.
The Supreme Court fight is playing out on an unusually fast track, with Trump appealing just a day after the 7th U.S. Circuit Court of Appeals declined to grant a stay to Perry’s order, ruling her findings were not “clearly erroneous” and that “the facts do not justify” Trump’s actions in Illinois.
The three-judge appellate panel unanimously agreed with Perry that, even giving the president “great deference” when it comes to his power to call up the military, there was no evidence that he needed troops to help enforce immigration law or quell any kind of organized rebellion.
More Top Picks Audiobooks And Dyslexia Do They Count As Reading
“The spirited, sustained, and occasionally violent actions of demonstrators in protest of the federal government immigration policies and actions, without more, does not give rise to a danger of rebellion against the government’s authority,” stated the opinion by Judges Ilana Rovner, David Hamilton and Amy St. Eve.
The judges went on to note that while the Trump administration has claimed that protesters and local politicians are hampering immigration-enforcement efforts, the evidence — and even the administration’s own statements — don’t back that up.
Two of the three judges on the panel, Rovner and St. Eve, were appointed to the 7th Circuit by Republican presidents, with St. Eve’s appointment coming during Trump’s first term. Hamilton was appointed by Democrat Barack Obama.
The Department of Justice has argued that Perry’s order “improperly impinges on the Commander in Chief’s supervision of military operations, countermands a military directive to officers in the field, and endangers federal personnel and property.”
Trump has claimed ongoing violence and clashes between protesters and immigration agents in Chicago and other U.S. cities justified sending federalized troops onto the streets as security, even as local and state officials accused the president of manufacturing a crisis to justify unnecessary — and unprecedented — force.
In her oral ruling from the bench, Perry, a Biden appointee, said National Guard troops are “not trained in de-escalation or other extremely important law enforcement functions that would help to quell these problems,” and that allowing troops to come into Chicago “will only add fuel to the fire that the defendants themselves have started.”
The judge also said the Trump administration’s attempts to cast protesters as violent rebels “cannot be aligned” with the view of local officials.
Perry said she had no faith in the declarations of federal officials submitted to the court due in large part of a growing body of evidence that the U.S. Department of Homeland Security’s views are “simply unreliable.”
Perry cited several assault cases that had been dismissed against protesters and other orders from federal judges in Chicago entered against DHS and U.S. Immigration and Customs Enforcement.
“In the last 48 hours in four separate unrelated legal decisions from different neutral parties, they all cast significant doubt on DHS’ assessment of what is happening on the streets of Chicago,” Perry said.
Perry also said a rebellion is defined as “a deliberate organized resistance openly opposing the laws and government as a whole” by means of armed violence.
“I have found no credible evidence that there is a danger of rebellion in the state of Illinois,” she said.
The Trump administration’s appeal to the Supreme Court, however, said “federal personnel and federal property are the central targets of the violence that has roiled the Chicago area in recent weeks.”
The filing relied on many of the same declarations from immigration officials that were put into the record before Perry, including allegations that organized protesters had formed convoys and intentionally rammed agents’ vehicles during enforcement operations, that rioters had shot fireworks and thrown rocks at officers, and that a “high-ranking” Chicago gang member was charged with putting a $10,000 bounty out for the killing of Border Protection Cmdr. Gregory Bovino.
“An immediate administrative stay would allow the Armed Forces to provide the protection that the President has directed,” the petition concluded. “Were the injunction allowed to remain in effect, even just for the period while this Court considers the stay application, that would immediately increase the risk that federal personnel in Chicago may be seriously harmed by violent anti-ICE agitators.”
While some of those cases have since fallen apart in court, including one instance in which a federal grand jury refused to indict a Chicago couple accused of assaulting officers during a protest in Broadview, the solicitor general argued that it’s hardly surprising given the “current climate of hostility” toward federal law enforcement in Chicago.
“A grand jury’s decision not to indict a person accused of assaulting a federal officer is hardly proof the assault did not occur,” the filing stated.
During the hearing before Perry on Oct. 9, an attorney for the Department of Justice argued that protesters gearing up in gas masks and padding, “preparing for contact with federal personnel,” was evidence of the serious threat posed to law enforcement.
Perry shot back that maybe it wasn’t the protesters who started it.
“I would agree with you if it were not in evidence that ICE is indiscriminately gassing people, peaceful protesters,” the judge said. “If I were a peaceful demonstrator outside of Broadview and ICE had a habit of throwing smoke bombs at random to groups of 10 or less, I too would wear a gas mask, not because I want to do violence but because I’m trying to protect myself.”