President Trump has declared that he wants to send the National Guard into Chicago, a move that would set himself up for a bigger legal challenge and riskier political move compared to his crackdown in Washington, D.C.
Trump’s decision to send the National Guard into the nation’s capital, which the White House has touted as a major success, is protected under the Home Rule Act that gives the president the authority to take control of the District’s police department for up to 30 days.
But the president doesn’t have that authority in sovereign states. Illinois Gov. JB Pritzker (D) has warned the president against deploying the National Guard to Chicago, demonstrating a power struggle that’s sure to spotlight how Democrats will handle Trump on the matter.
Trump in early August announced he was taking federal control of the D.C. police department and deploying the National Guard. By September, more than 3,300 federal law enforcement from 22 agencies patrol the streets nightly, more than 1,700 arrests have been made and more than 190 firearms have been seized, according to the White House.
The president’s tone when it comes to Chicago has also shifted. He suggested Tuesday he could go all in, but then also insisted he wanted governors to ask him to help activate the National Guard in their states, appearing to acknowledge some limits to his overarching authority he can exercise in D.C. but not elsewhere.
“The analogous governor of D.C. is the president,” said Rachel VanLandingham, a former Air Force judge advocate and law professor at Southwestern Law School.
But in Chicago, the situation is very different.
“Most of what Trump has done in D.C. is not repeatable anywhere else,” said Joseph Nunn, counsel in the Brennan Center for Justice’s Liberty and National Security Program.
“Whatever Trump says, the federal government has no power to go into Chicago and take over local policing and local law enforcement there.”
Legal fight imminent
Any effort to deploy National Guard troops to Chicago would likely face a legal fight, like the one that has played out in Los Angeles since Trump federalized part of California’s National Guard after immigration protests turned violent in June.
Trump cited Title 10, a federal law that lets the president call National Guard troops into federal service in specific circumstances.
California Gov. Gavin Newsom (D) quickly sued, calling the deployment unlawful, but the Trump administration argued the move was legally sound because troops were protecting federal officers, not enforcing laws.
U.S. District Judge Charles Breyer, an appointee of former President Clinton, ruled Tuesday that the troops violated the law when Trump sent them there — specifically running afoul of the Posse Comitatus Act, an 1878 statute that generally bars federal troops from participating in civilian law enforcement.
The decision expressed worry that other cities, including Chicago, could be next, though the judge emphasized his ruling applies only to Trump’s use of the National Guard in California — “not nationally.”
The Trump administration quickly appealed Breyer’s decision, the second major ruling the judge has made on Trump’s National Guard deployment.
Trump has cast Chicago as the “worst and most dangerous city in the World, by far,” pointing to a spike in shootings over Labor Day weekend as proof. But state and city leaders say crime is significantly down.
If he doesn’t federalize Illinois’s National Guard, the president could attempt to call other states’ National Guards to Chicago under Title 32, meaning they are under local authority but federally funded and not subject to the Posse Comitatus Act, because they are technically under a governor’s command, despite receiving their mission from the White House.
The National Guard in D.C. were deployed in a Title 32 status, and governors from several Republican-led states sent troops to assist with Trump’s mission to crack down on local street crime. Pritzker has suggested the Trump administration is preparing the Texas National Guard for deployment to Chicago.
But that wouldn’t be as easy in Chicago as D.C., VanLandingham said.
Trump could try to send Texas National Guard members to Chicago on a federal mission to crush crime, but the U.S. Constitution leaves responsibility for local policing to the states. If Pritzker doesn’t authorize those troops to engage in law enforcement, they can’t, she said.
“The law clearly says that the Texas governor has no jurisdiction in another state to engage in law enforcement,” VanLandingham said, noting Illinois could file a lawsuit claiming its sovereignty is being stepped on.
Nunn said it’s unlikely the administration would take that approach, which would certainly face an uphill battle in the courts. The president could federalize Texas’s National Guard, or another state’s, but then those troops must comply with the Posse Comitatus Act, he said.
Or, Trump could invoke the Insurrection Act — a power used sparingly throughout U.S. history that allows for the use of the military to quell rebellion, a move Trump has long flirted with but steered clear from. VanLandingham noted a “definite hesitancy” from the administration to go there.
In a statement to The Hill, Illinois Attorney General Kwame Raoul (D) said the state has been reviewing all legal tools available, even without yet knowing what form the federal operation will take.
“The requirements for such deployment do not exist in Chicago, and I will not hesitate to take action to protect our residents if this administration breaks the law or violates our Constitution,” Raoul said.
Trump, Pritzker face off
Trump has flirted for weeks with the idea of sending federal troops next into Chicago, while also bashing Pritzker and lobbing personal insults at him.
Trump wants Pritzker to call him and ask for help combating crime in Chicago; Pritzker said it’s insulting that “any governor should have to beg the president of any political party for resources owed their people.”
The governor is expected to have White House aspirations, so the back-and-forth between him and Trump has been closely watched. The same has gone for Trump and Newsom.
Democrats argue Pritzker taking a stand against Trump is worth it to project strength, even if it comes with risks.
“Good politicians don’t approach high-stakes politics by calculating safe passage — they step up and take a stand. Pritzker has been blunt, consistent, and carries an energy that feels bigger than the job,” said Ivan Zapien, a former Democratic National Committee official.
“Yes, it could backfire, but he’s been clear about the why. That conviction also happens to be the smart political move, aligned with what Democrats are looking for right now.”
Weeks into his crackdown in the nation’s capital, Trump said Democratic D.C. Mayor Muriel Bowser’s response should be “used as a template” for other local leaders. Bowser, who has been largely amendable to the takeover of the city’s police force, signed an order Tuesday authorizing coordination between local police and federal forces extending beyond Trump’s declared emergency.
But, while other Democrats may not be as friendly — and Trump doesn’t have Home Rule elsewhere to justify moves — the president now appears to be considering acting in red states.
He floated that the next city for the federal crime crackdown could be New Orleans; the Big Easy has a Democratic mayor, but Louisiana has a Republican governor.
“We’re making a determination now — do we go to Chicago, or do we go to a place like New Orleans where we have a great governor, Jeff Landry, who wants us to come in and straighten out a very nice section of this country that’s become quite tough, quite bad,” Trump said.
