Trump v. Illinois is Robertsian faux minimalism at its worst.

Josh Blackman | 12.24.2025 1:44 AM

Trump v. Illinois is the kind of Supreme Court opinion written for the headlines. For example, the New York Times blared "Supreme Court Refuses to Allow National Guard Deployment in Chicago." Most people reading that headline might think that the Supreme Court struck down President Trump's exercise of executive power, or determined that there was no actual need to deploy the national guard. But none of that happened.

The actual basis of the decision has nothing to do with the President's Article II powers, or whether Trump properly found there was a valid basis to deploy the guard. The short per curiam ruling is at once narrow, yet extremely consequential. Indeed, the statutory argument the Court adopted was not advanced in the lower court by Illinois, but was raised in an eleventh hour amicus brief by Professor Marty Lederman.

In short, federal law empowers the President to federalize members of the National Guard if he is "unable with the regular forces to execute the laws of the United States." The Court finds that "regular forces" "likely refers to the regular forces of the United States military." The President did not point to any "source of authority that would allow the military to execute the laws in Illinois." Because the President has not done so, the President cannot show that those regular forces (the military) would be unable to execute the laws of the United States. QED.

If you just read the majority opinion quickly, everything seems to line up so easily and neatly. But once you peel back the shiny veneer, you realize that we have just been served another John Roberts Blue Plate Special. The Court purports to engage in minimalism: rather than deciding the difficult Article II issues, and determining how much deference the executive is owed, the Court resolves the matter on seemingly narrow statutory grounds. But any minimalism here is fake. The Court effectively neutered this statute. Because there will be very few cases where the President can use the military "regular forces" in domestic matters, it will be even rarer for the President to meet the predicate to federalize members of the National Guard. Perversely, as Justice Kavanaugh notes in his concurrence, "One apparent ramification of the Court's opinion is that it could cause the President to use the U.S. military more than the National Guard to protect federal personnel and property in the United States."

I can criticize Chief Justice Roberts and Justice Barrett with my eyes closed. (I admit I have a propensity for calling on people named Roberts to resign.) But the other three members who joined the majority in full have some chutzpah. Justices Sotomayor, Kagan, and Jackson simply ignored all of their complaints about the shadow docket. They decided a significant issue affecting presidential power on the emergency docket with scant briefing and no oral argument.

Let's break it down.

First, this issue has been percolating for some time. There have been many decisions issued by District Courts in Illinois, California, Oregon, followed by appeals to the Seventh and Ninth Circuit. The emergency application was filed back on October 17. Circuit Justice Barrett called for a response three days later on October 20. The reply brief was filed in October 21, the same day as Professor Lederman's amicus brief. Then, on October 29, the Court requested supplemental briefing on "[w]hether the term 'regular forces' refers to the regular forces of the United States military." But this briefing schedule was a bit more relaxed. Opening briefs were due on November 10, and reply briefs were due on November 17. The Court no longer seemed to be in a hurry, and had likely already concluded that the stay would be denied. Given that the initial reply on all issues was due within three days, the Court was really........

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