Members of the Texas National Guard at an Army Reserve training center in Elwood, Illinois, in October 2025. (Photo: Scott Olson/Getty Images)
President Donald Trump has broad unreviewable powers to flood U.S. cities with National Guard troops, the Department of Justice (DOJ) argued in an expansive new filing to the Supreme Court.
The letter, filed by Solicitor General D. John Sauer late Monday, marked the latest step in Trump’s authoritarian effort to militarize cities and to integrate soldiers into routine policing.
The filing was made as part of the Supreme Court’s request for additional briefing on the legality of Trump’s attempted military deployment in Chicago. Trump attempted to federalize 300 Illinois National Guard troops and deploy them into Chicago earlier this year, claiming they were needed to protect federal agents conducting immigration enforcement operations in the city as part of this mass deportation agenda.
The aggressive raids have ignited widespread but largely peaceful protests from residents, particularly outside of an Immigration and Customs Enforcement facility in Broadview, Illinois, a suburb around 12 miles west of Chicago.
A district court temporarily halted Trump’s Windy City deployment last month. After the ruling was partially upheld by the Seventh Circuit Court of Appeals, Trump filed an emergency appeal of the lower court block to the Supreme Court.
In a surprise move, the high court said before it acted on Trump’s appeal that it needed more information on 10 U.S.C. 12406 (Title 10), the archaic law the president has repeatedly invoked this year to take control of thousands Guard soldiers.
The rarely used statute allows the president to federalize Guard troops — which are normally under state control — when the country faces foreign invasion, when the U.S. government faces rebellion or, operative here to the Supreme Court’s inquiry, when the president is unable to execute laws with “regular forces.”
The Supreme Court asked Trump and Illinois, which is challenging the Chicago deployment, to answer whether “regular forces” in the relevant clause refers to the traditional forces of the U.S. military — such as members of the Army, Navy and Air Force.
The court’s question appeared to be prompted by Martin Lederman, a former DOJ deputy assistant attorney general who’s now a professor at the Georgetown University Law Center. Lederman argued in an amicus brief that throughout U.S. history, and the specific legal history of Title 10, the phrase “regular forces” has always referred to the armed forces.
Filing on behalf of Trump Monday, Sauer asserted that the phrase does not refer to the standing military but instead to the “civilian forces that regularly ‘execute the laws’ at issue but are ‘unable’ to do so in present circumstances.”
While Sauer claimed that traditional armed forces generally cannot enforce federal law, he at the same time contended that the president has broad authority to deploy the formal military domestically.
“To be sure, the standing military was undoubtedly an available option to quash the violent resistance to federal immigration enforcement,” Sauer claimed of protests in Chicago, without specifying what authority Trump would have used to do so.
Trump, Sauer claimed, may have chosen not to deploy the formal military to Chicago because doing so “would result in even more strident resistance” from residents.
Sauer also claimed that Guard troops, with their “greater local knowledge, ties to the community, and domestic focus,” are likely better suited than traditional soldiers to suppressing “violent resistance on the streets of American cities.” That argument, however, is hard to square with Trump’s attempt to send hundreds of federalized Texas National Guard troops to Chicago.
A large part of Sauer’s letter wasn’t devoted to addressing the Supreme Court’s regular forces question but instead arguing that courts have no authority to question the president’s ability to deploy troops domestically.
“The President’s determination to call up the National Guard is a core exercise of his power as Commander in Chief over military affairs, based on an explicit delegation from Congress,” Sauer said. “That determination is not judicially reviewable at all; at minimum, it is entitled to extremely deferential review, under which it should be upheld.”
The DOJ has repeatedly claimed courts cannot review Trump’s deployments — even after a panel for the Ninth Circuit Court of Appeals rejected that argument in a ruling on his military intervention in Los Angeles earlier this year.
In its brief, Illinois adopted Lederman’s argument that “regular forces” refers to the normal armed forces. Because he never attempted to use traditional soldiers to assist or protect federal immigration agents in Chicago, Trump couldn’t have determined that he was unable to execute federal law and therefore lacked the authority to federalize the Guard, the state argued in its letter.
“Because ‘the regular forces’ refers to the full-time, professional military, the President may federalize and deploy the National Guard under [Title 10] only in circumstances where he is unable to execute federal law with the military,” Illinois said.
“These circumstances are not met here,” it added while asking the court to deny Trump’s emergency request.
If the Supreme Court ultimately adopts Illinois’ argument, legal experts have noted it could undermine Trump’s Chicago deployment, as well as his attempt to send Guard troops to Portland, Oregon.
As in Chicago, Trump never attempted to send regular armed forces to Portland before he announced a deployment of the Guard.
A district court judge permanently blocked Trump’s Portland deployment last week after finding that it violated both the U.S. Constitution and Title 10. The ruling marked the first time a federal judge permanently blocked one of Trump’s military interventions in a major Democratic-led city.
Only in Los Angeles did Trump dispatch members of the traditional armed forces. He sent around 200 Marines in response to protests against immigration raids, but he did so while simultaneously deploying thousands of federalized members of the California Guard.
Alongside Sauer’s and Illinois’ letters, several groups asked the Supreme Court in briefs to deny Trump’s emergency appeal.
In one brief, the ACLU, the Knight First Amendment Institute and other civil rights organizations said Trump’s decision to deploy troops in response to demonstrations against the government were “incompatible with our nation’s ideals and threaten to suppress countless Americans’ exercise of First Amendment rights.”
In another, two dozen former federal judges supported a rejection of Trump’s appeal in order to preserve the judiciary’s authority to determine when a president has exceeded his constitutional and statutory authority.
The block to Trump’s Chicago deployment will likely remain in place over the coming days. The court gave Trump and Illinois until Nov. 17 to file reply briefs, and it likely will not rule on its regular forces question until those are submitted.
