Is President Trump Authorized to Deploy the National Guard in U.S. Cities? - Ep 68

Welcome to Litigation Nation. I'm your host, Danessa Watkins, here with my cohost, Jack Sanker. As a reminder, this is the show where we cover fun and exciting legal news from across the country. We are now committing to trying to put out an episode once a month given our busy litigation schedules. We'll do our best here.

And you can find us wherever you get your podcasts, Apple, Spotify, YouTube, all the above. So Jack, what do you have for us today?

Today, we're gonna be diving into a topical and relevant topic for our home base here in Chicago, a lot of places around the country, and discussing the ability of the president to federalize and deploy troops domestically, whether federal troops like the US military were to take control of the state's national guard to deploy it domestically. We'll be talking about some recent litigation here, in Illinois regarding the president's ability to do this, and the we'll spend some time on what authority the president actually has to do this and what they have to show to be able to be authorized to do this type of thing, the arguments against it and so on.

And given the amount of time that we wanna dedicate to that subject, I'm just going to do a quick kind of where are they now from episode 61 where we covered the lawsuit that Drake filed against his record label for Kendrick Lamar's Not Like Us diss track. All that and more, here's what you need to know. Alright. Back in, I believe it was February on episode 61 of our show, we covered the defamation and harassment lawsuit that was filed by Drake in a New York District Court against his And record label, this was regarding UMG's efforts to promote the diss track released by Kendrick Lamar in which he most notably referred to Drake as a pedophile. Now this case has been being litigated there and it's the Southern District Of New York and on October 9, we finally got an opinion that came out in connection with UMG's motion to dismiss.

I think we had kind of heavily speculated that this claim was going to get thrown out, and we were in fact correct. So this judge issued a 38 page opinion. A lot of it is like actually the first 10 pages go through the history of what was occurring with the diss tracks. I think it was over like a sixteen day period. Both Drake and Kendrick Lamar released a total of nine tracks between the two of them, all of which included heated rhetoric, violent imagery, you know, your your classic diss.

So just as a quick recap, what Drake did was instead of go after Kendrick Lamar for all of the damages he claims to have suffered thereafter, he went after his record label and he claimed that they were promoting a defamatory statement about him because they used more efforts than they would have for other songs to promote this particular track. So in doing so, they spread like wildfire, this idea that Drake is a pedophile and open Drake up to more damages than he says he would have been open to had they just treated this like they would have treated any other Kendrick Lamar track. Now, we know how this song blew up. We know about we actually I think we had talked about in the former episode that Kendrick Lamar actually performed it at the Super Bowl halftime show. So no doubt this was one of the most successful diss tracks that we've seen.

But, you know, that doesn't necessarily give Drake a basis to sue anyone is essentially what the court said. So what it glommed onto was the fact versus opinion analysis, and the New York Constitution provides for absolute protection of opinions. Of course, we also have under the First Amendment that there is no such thing as a false idea. So the court went through this analysis of trying to determine whether this one statement which Drake highlighted as the most damaging, calling him a pedophile, whether that would be perceived by the public as a statement of fact or a statement of opinion. Now, this is purely a legal question.

This is something that needs to be decided by judges in the first instance, mostly because we don't want to stifle free speech. So if people are in fact expressing opinions, even if it hurts your feelings, you're probably not going have a lawsuit and we want courts to protect against that right from the jump. For some reason, Drake's attorneys tried to argue that this should be a fact, I mean, a question for the jury. I've never seen that in my practice, it's always been an issue of law, so I think the court got it right there. And it outlined the different steps that it takes under New York's law, which is very similar to Illinois and I would assume similar across the country, to determine whether a statement is a fact or an opinion.

So one is you look at the specific language that's used and whether it has precise meaning. Second, whether the statement is capable of being proven as true or false. And third, which is whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact. So that third portion of the test, that one obviously kind of lends itself to the facts of every given case because you have to look at how is something communicated, what's going on, even to the point of what are social and political temperatures like at the time that something is released. So the first two, whether the statement Drake is a pedophile, has a precise meaning, whether it's something that's capable of being proven true or false, I mean, are clearly yes, yes.

So Drake did pass those first two prongs of the test. But the third one is where he gets caught up. And that's where the court primarily turns its attention and its in its opinion. So first it talks about the forum. And this is whether essentially where is this being published.

So we look at like news reports, journalistic pieces. Those are going to signal to readers or listeners that this is factual based versus like a blog or some type of, you know, internet forum. Those you're going to, as a reader, come in with a little bit more skepticism or you're going to assume that it's just people, you know, sharing their opinions. So the court finds that when you're dealing with this, it's a it's a diss track. It's going to be more akin to like a YouTube or a Twitter post.

Listeners are going to come in kind of with that skepticism and with that understanding that what they're listening to is entertainment. It's not for some scientific or informational purpose. So that one forum definitely weighed in favor of UMG. Then the court looked to the surrounding circumstances. So these were obviously lyrics that were conveyed in the midst of a rap battle.

This was actually the eighth song, I think, that was released, so towards the end of this back and forth. So because of that, it's going to convey a different message. It's going to have a different effect on the listeners. Clearly, this was part of a war on words, quote unquote, which has been used in case law for decades to try to distinguish fact versus opinion. So if it's clear that there's some and even in this context of politics, if there's political rhetoric going back and forth or some public issue that's being debated, there's this understanding it's a war on words.

You're going to have either side trying to do some sort of persuasion when it comes to whatever that hot button issue is. So here, the audience is going to understand, like, this is rhetoric. This is hyperbolic messages that are being exchanged. These are not factual statements. So Drake's team, they tried to argue that the song itself, not like us, has to be viewed independently.

And again, this is just an argument that is that is a loser. Frankly, in my book, you know, practicing in this area, like the court was never going to do this. It's not going to view this statement in a vacuum. It has to look at the fact that this this song in particular was being released as part of bigger, you know, back and forth between these two artists. So the the court essentially says it's it's not gonna blind itself to the public attention that this whole situation generated.

What's interesting is I mean, this is in the context of the lawsuit that was filed against the record label. Right? Right. Does the analysis change if it's against Drake or if it's against Kendrick? Like, the would the court I guess I should maybe I'll I'll ask you a different way.

I'm sure that the defending themselves by saying, you know, this is commentary. It's an opinion and so on. Would Kendrick have defended himself that way or would he said, no. No. He's a pedophile.

It's a fact. I believe it. It's true. I'm not you know, like, would it would he have doubled down on it? And then and if so which also might be the questions or might answer the questions to why Drake did not sue Kendrick.

Because then you get into a question of fact on that one issue. Right?

So, yeah. So if I were Kendrick's lawyer I mean, of course

insist that he not do

Of course, I would wanna know what type of evidence he actually had, you know. But I if you were gonna argue truth, you would argue it in the alternative because opinion is the clear winner here. That's that's an issue of law. When you get into substantial truth, those are questions of fact and they require discovery. So if I wanted to get him out of this case as quick as possible, and that's not to say that he couldn't change his theory later and, you know, file an affirmative defense of truth, But I it wouldn't be my my argument out the gate.

And yeah, I guess you bring up a good point. Is he ego wise going to, you know, make sure his lawyers only argue truth?

I mean, he's still he's still performing the song. I mean Yeah. It is he is he is every day still calling Drake a pedophile and did not back down. So, I mean, it's you know, I I understand that, of of course, the defense strategy of what you're saying. But if your client says, no, it's the it is the truth.

I wanna argue about it. I I wanna take that one. I wanna make that argument. I just, you know, it it just it's a completely different situation.

And that could have been a strategic move by Drake's team too. Maybe they didn't wanna get into that argument. You know what I mean? Maybe Kendrick Lamar would be able to put up some proof whereas UMG maybe doesn't have the same access or knowledge or whatnot.

He strikes me as an extremely petty person. And and a bit, and I mean, this is a compliment as I am also petty, but he is a a petty person and, you know, has like I said, he has not changed his tune on this whatsoever. Kendrick. Right. So I yeah.

I mean, I think when we talked about this initially, I think you said it was episode 61, you know, we talked about why wouldn't Nisu you know, the speaker here, the person who who who did, you know, was saying the allegedly defending things, which is Kendrick. And I think we were spinning it around and and said, well, it's it's a bad look for Drake to do that. You know, it it is lame if you're in a, like, like a a rap battle to like

Yeah. Then turn around and sue the other When you when you don't come out on top .

Yeah. It's like tattling on the teacher. You're you're bringing the teacher in or or, like, they call him the hall monitor. Like, it is kinda lame to do. And we said that was probably the reason why.

But, like, alternatively, it could be they don't want to actually have to, you know, get into that messy discovery where where this issue has to be, you know, addressed factually.

Yeah.

Right?

Well, I mean, to be fair, they would have had to do that in this case either way. I mean, defamation, it it's not defamation unless it's false. Right? So at some point, it would be Drake's burden to prove falsity. But, yeah, I think he I think there were a lot of reasons why he didn't go after Kendrick Lamar.

But I, in the end, what is the effect of this? Effectively, he was going after Kendrick Lamar. Like he was going after another artist. He was just doing it through, you know, an affiliate.

He would have released like 10 more songs. Would have kept It would have kept going through. Yeah.

But I mean, so even if don't know what the statute of limitations is in New York. In Illinois, it's a year. I think the most I've seen is two years. So let's assume New York was two years. If it if it was, then he would still have until I think it was released in June, so June 2027 or excuse me, 2026 to bring a claim against Kendrick Lamar, but this judge shut that down.

Actually, in the opinion says the recording was a protected opinion at the time of its initial publication. So the republication by UMG cannot transform Lamar's statement of opinion into UMG's statement of fact. So the court is definitively saying from the jump, this was a statement of opinion. It would have been this action would have been protected against Kendrick Lamar just same as it was against UMG. And the court shut down all of the arguments Drake was trying to make about how the success of the song should have weighed into the defamation analysis.

I'm just gonna read this one paragraph from the opinion that I thought was interesting. The judge says, quote, perhaps most fatally for plaintiff's argument, it would render protection for artistic expression dependent upon an impermissible retroactive analysis. At the time he released Not Like Us, Kendrick Lamar could not have been aware that it would break streaming records, win record of the year at the Grammys, or be featured at the Super Bowl halftime show. Yet, plaintiff would have the court divorce the recording from the context in which it was created because of these subsequent events. Whether publications constitute actionable fact or protected opinion cannot vary based upon the popularity they achieve.

Constitutional guarantees do not rest on such a flimsy foundation, end quote. So defamation definitely out. I remember from our last recording you thought the angle of harassment was maybe their better claim. What we hadn't considered though is the fact that in New York, this was pursuant to a criminal statute that does not include an express right to bring a civil claim. So just for the listeners in case you don't know, generally, if if there's a criminal statute, they will include some sort of a or or not.

They will or will not include some sort of a carve out provision that allows for a independent action in in civil court. So instead of like the state pursuing a criminal statute, it allows an individual to do so for money damages. Again, not every criminal statute allows this. But sometimes, even if a statute doesn't specifically say that it allows for it, a court can read in some sort of a inferred right to private standing or implied right. Here, the judge refused to do that and said, no, our harassment claims in in New York are criminal only.

So threw that one out. The last count was pursuant to New York General Business Law section three forty nine which is essentially like a deceptive Trade Practices Act sort of claim. Here there were there were different reasons why the court rejected it, but one of like the most prominent, which is an argument we see also under our statute, is that there's really no harm to the consumers here. So these type of deceptive trade practices act generally they're there to protect consumers. So it's not like anything that UMG did cause consumers to for example like be deceived into buying a record they wouldn't have otherwise.

So Drake essentially failed to failed to plead sufficient facts that there was consumer harm. And what he did plead though was all upon information and belief. And it it just didn't pass the plausibility standard. Now you can definitely plead upon information and belief in certain circumstances, but the court took some great effort to say, but what it what is your belief based on? And ultimately, everything was like third party fans writing on Twitter.

Like accuse accusing UMG of utilizing like these covert tactics of manipulating the streams. And so it these weren't it's not like they had some like emails they got ahold of or like some radio DJ was like, oh, yeah, UMG contacted me and told me to, use bots or whatever. No. It was purely like just people's opinion writing on Twitter and and other social media sites and that's not enough essentially the court said. So the case was dismissed with prejudice.

I think I read somewhere that Drake's team said they're probably gonna appeal. I mean, after reading this opinion, I think the judge did a really good job of, like, I don't I don't see any basis for appeal here. So I mean, not that he, you know, is worried about the money he's gonna spend. Maybe he's in it now. He's gotta fight the fight.

But I I don't know. At this point, I'd be like, Drake, pack it up and go home. Like, this is not, you know, the hole you wanna or the the mound you wanna die on.

Yeah. It just it seems like there there were other avenues here. I mean, the for like, a victory in principle or something, you know, they whether it's a, like, a private toward action even against the the label. Because, I mean, the the context, I mean, in the complaint that was filed, which we talked about in our so when we covered this, it it starts off with the account of the the individuals that end up going to Drake's house and shooting up the place. And I believe his security officer or bodyguard or someone in those lines was shot.

And I I did they are they killed? I don't remember offhand.

No. He he ended up surviving.

That's good. But nonetheless, like like, there was, like, you know, an extremely violent act that was, at least according to the complaint and the circumstances around it, tied to this this thing. And I wonder if there was another way in which this could have been done on those grounds or or something like that, you know. And I'm thinking of like

I

you know.

Well Yeah. Exactly. But I And I was just thinking through that as you were saying it. So I think the problem is that that occurred so close in time. I wanna say within forty eight hours.

So UMG hadn't taken any action yet, you know, to promote it, to promote the song.

I see. They can't so that would be, if anything, you would have to plead that against Kendrick, were they're avoiding.

I mean, you know, that's something that has to be foreseeable. Right? So

Right. Right. Well, yeah. I mean, but again, it just makes me wonder, like, you know, if if there was another way for, you know, Drake to to make his point here other than take on an incredibly high standard of proof And and, you know, even I mean, these cases, I understand, I mean, you're the expert, you know, in this type of law, it's it's its own thing, but, like, these are hard cases. And I wonder if there was some more there's a better way for him to get a win on paper at least than to take, you know, the path of most resistance here.

Yeah. I think this was just one of those like I mean, don't wanna assume what was, you know, going through his mind and the minds of his lawyers, but I I think he probably felt he had to do something and it would have been more offensive to the music industry and his colleagues to go after another artist. So I think they tried to be creative and do it this way. But and I think I yeah. In in our prior episode, I had said that they did do some some discovery before filing this complaint.

So, you know, if if nothing showed up in that discovery that gave them what they needed for the at least the deceptive trade practices claim, they probably should have called it quits. Yeah. Here we are.

That's interesting. Yeah.

So that's your where are they now update on the Drake saga.

Our next story that we're talking about this episode, it's a it's a little heavier than the Drake Kendrick beef part two. And something topical and particularly relevant to, you know, our situation in the city of Chicago. That's that's where that's where our firm is based where we have offices in I think six states, but the mothership, if you will, was in Chicago. Dennis and I both live in Chicago. So we have some perspective on this, which we'll sprinkle in as well.

But we're talking about the the efforts to deploy federal troops domestically, specifically to Illinois, but we'll we'll talk a kind of more bigger picture as well here. And we're gonna be talking about both the efforts to deploy for the federal government to deploy the National Guard to quote unquote federalize the National Guard as well as, at the end, I'll discuss a little bit about what would happen, if the federal government wants to deploy the regular military as well. So this discussion, you know, is in light of like recent events, of course, like just, you know, kinda look around. I'm sure if people that are listening, you know, broadly, this is a downstream effect of the ICE immigration crackdown that's happening across the country, but most prominently in a lot of metropolitan areas, big cities. Chicago has become a particular target for this enforcement action that's happening.

And the justification for broadly speaking, justification for, you know, why it is that the federal government wants to now either send in, you know, the regular military or to federalize a national guard is, the effects of, the enforcement action, the immigration enforcement action, and how people in the states are responding to them. So broadly speaking, what the federal government is saying here is people in these states are either obstructing the the immigration actions, which we we want to conduct and slash or are putting other people at risk, damaging things, or potentially hurting federal officers, things like that. So it's you know, these are this is a cause and effect type thing. Right? The the ICE immigration crackdown is happening.

People are responding to that. And as and a response to the response from the federal government is okay. We wanna send in either the National Guard or the military to deal with that. The federal government has been talking about this for a long time since I went back and looked at the Trump administration. I mean, back in the twenty fifteen, twenty sixteen campaign, I mean, this was a topic that was broached.

I mean, but at that point, it was kinda beyond the pale. No one took it seriously. There were points in which during the first Trump administration in 2016 to 2020 that he talked about this as well in the context of like the George Floyd protests and and riots or whatever you wanna call them. And in most instances where, you know, that discussion kinda got serious, like there's I'm thinking one comes to mind is in Minnesota, which is where, of course, the George Floyd was killed and that led to protests, which then led to rioting and property damage and all that stuff. Effectively, at that point, then president Trump said something on the lines of, hey, Minnesota, you're gonna either gonna deploy the National Guard or I will.

Right? So basically, ultimatum to the state to activate their National Guard, which they did. This was under governor Tim Walts who, of course, ran for vice president alongside Kamala Harris. And that this also happened in a number of states, happened in Illinois as well. Our governor, JB Pritzker, deployed the National Guard in response to the protests slash riots here in Illinois as well.

But it was done at the state level. What's happening here and what's a bit unique is that the states in particular, Illinois, which we'll be spending most of our time talking about today, but this is also happening in Washington. There was DC is its own thing because it's not a state, but there the state governments are saying, we don't want you to do this. And the president is saying, want you anyways. Right?

That's what makes it distinct from a lot of other examples of this type of thing. So so under what instances can the president, you know, override the governor of a specific state and say we are going to send in the National Guard to your state whether you like it or not. That's that's what we're gonna be talking about. There is a historical precedent for this type of thing in this country. Of course, this this has happened before.

There's a lot of caveats to that statement, but this is not the first time that a president would have done this. The earliest example I can find is, president George Washington, the first, president, called up the state's militias in 1794 put down the whiskey rebellion. It's a bit of an outlier because the statutory framework around that stuff was Danessa's rolling her eyes because I'm gonna do this historical bit, but I'm like and you wait because I am gonna work reconstruction into this as well. Of course. Yeah.

It's happening. But it it's it was different then because the the the idea of a federal standing military didn't quite exist the way that it does now. And also, militias were a different part of the federal, you know, armed forces makeup than they are now. National Guard is kind of a different thing and all that. But nonetheless, you know, that's probably the first example you could think of.

Of course, it did happen a lot during Reconstruction. This is the period after the civil war. And the the goat himself, Ulysses s Grant, he deployed the National Guard as well as regular military, mostly to Southern states during Reconstruction to protect the rights of former slaves who were seeking exercise their right to vote and to do all sorts of other things too. He was enforcing the 1871 Ku Klux Klan Act as well as the the 1870 Enforcement Act. Both of both of those were Reconstruction led bits of legislation that were meant to sort of quell the the backlash to the result of civil war in the passing of the the civil right or the constitutional amendments, fourteenth thirteenth, fourteenth, and fifteenth amendments.

The statutory scheme for these deployments kind of historical examples I'm giving were much more expansive at the time. The president used to have a lot more powers to do this unilaterally. And as a kind of as a result of these presidential deployments to Southern states, southern Democrats at the time, in congress eventually passed the, it's called the Posse Commodus Act, PCA, which barred the use of troops for law enforcement, cases, except in cases or under circumstances expressly authorized by the constitution or by an act of congress. So broadly speaking, that is still in effect. The the president can't unilaterally, deploy military forces to conduct, like, regular policing.

There has to be a specific reason for it that's enumerated by an act of congress, which I'll get into. And and there is a, there is some legislation which, you know, from the administration's perspective, does allow them to do this in this case. There's you know, at the end of reconstruction, the guard being deployed by the federal government actually, let me do this bit again. Sorry. With the end of Reconstruction, the guard being deployed domestically is more or less limited to three specific roles.

The first of which is guard members typically serve in the role as, like, what's called state active duty, SAD, during which they work on behalf of the individual states. So that's by and large the most common, instance where guard members are are deployed. I mentioned before this happened in Minnesota during and after the, like, George Floyd protests and riots, governor Tim Walz called up the the Minnesota National Guard. This also happened in Illinois during that time. And you know, I don't have a list in front of me, but I think it was fairly common at that point in time because the scope of those protests and riots, you know, were so big that they just kinda needed additional people outside of the regular police force, to deal with them.

The second authority for deploying the guard is when the states, not federal government, deploys the guard pursuant to a federal mission that's that's set by congress. And this usually is in the form of, like, disaster relief historically. Federal governments, in this case, they will foot the bills for these expenses. The so they'll pay the, know, whatever the cost is to deploy the guard in the in these cases. So there's, you know, some benefit, to the states when this happens.

But like I said, this is like think like hurricane response, things like that. National Guard gets deployed. Federal government is gonna pay for that, but they are getting deployed by the by the state, by the governor, of the individual state, but pursuant to a federal mission. And the third instance, arises under title 10 of the US code, which broadly governs the military, the different branches, and so on. Title 10 contains the authority for the president to federalize the National Guard pursuant to specific and limited purposes.

And when this happens, the guard is placed under Pentagon slash presidential authority, just like the rest of the military would be. Here's what title 10 says on this issue. For those of all that wanna look this up, this is, 10 US code section, twelve four zero six. And it says, whenever one, The United States or any of the commonwealth or possessions is invaded or is in danger of invasion by a foreign nation. Two, there's a rebellion or danger of a rebellion against the authority of the government of the United States.

That rebellion aspect is something we'll talk about in a moment. And three, the president is unable with regular forces to execute the laws of The United States. That's the other hook that the administration is gonna latch on to as well. So if there is a, quote, unquote, rebellion against the authority of the government of the United States or, if the president is, quote, unable with regular forces to execute the laws of The United States in those instances, the president can federalize the National Guard and deploy them whether or not the state, agrees. So whether or not the governor of the individual state wants them there or not, the the under section 10, they can do that.

The the statute goes on to say, the president may call into federal service members and units of the National Guard in any such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governors of the states or in the case of district Columbia through the commanding general of the National Guard of the District of Columbia. This authority under title 10 is what the federal government recently argued allowed them to deploy the guard in Illinois, which they have not done yet, but they have been trying to effectively. The state of Illinois filed a lawsuit seeking an injunction to prevent them from doing that. They they as it stands, we sit here today, 10/21/2025.

There is a temporary restraining order in effect, is preventing the federal government from doing so until unless and until this issue can be resolved, presumably by intervention of a higher court. In this case, it's gonna be the Supreme Court.

Yeah. I think I just saw they're trying to fast track it to the Supreme Court right now.

Yeah. And I can see why. I mean, it's it's timely. You know, it's it's if you think this is if you're of the mind that there is a rebellion happening in Illinois, which we'll talk about. But if you're of the mind that that's the case, then you wanna do this as quickly as possible.

Right? Mhmm. So here's the kind of background facts that are at play here in Illinois at least. September 2025, the administration launched Operation Midway Blitz, which is the immigration crackdown that we've talked about specific to Illinois. There is a an ice processing facility in Broadview, Illinois, which is a suburb of Chicago.

I it's I think it's relevant to point out. It's not in Chicago. It's about 15 miles away from Downtown Chicago. So if you're driving, it's like four hours with our traffic.

It's We are.

So it's, you know, it's not Chicago proper. There's been protests outside of the Broadview facility, which have grown in response to this immigration crackdown. There is what I'm gonna get into some some points here where I say things like this is a peaceful protest or things like that. One, you know, people who don't agree with that or whatever can roll their eyes. That's fine.

But I'll jump ahead here and tell you that there have been hearings on this, and this is what the district court here in the Northern District Of Illinois has concluded are the facts that are relevant. The district court has concluded already that these are mostly peaceful protests that are happening there. Personally, and from my own observations as, you know, a resident here, I could tell you that there has not been instances of, like, vandalism, property damage, or violence at the Broadview facility that I'm aware of. There've been protests, there's been people screaming with signs. I'm sure people have thrown things, know, like that that probably has happened.

I I don't know offhand, but but it's not as though, you know, people are ripping down fences or things like that. You know, that that Yeah. Has not Yeah. And that's that's both true in the record here. That's that's been argued and decided already by the courts, but also, like, based on my own observations.

And I I'm trying to, you know, call balls and strikes here like I see it. So following these incidents of these clashes at the Broadview facility, ICE has used pepper spray and tear gas, road closures, and so on. Department of Homeland Security requested the depart Department of Defense to assist claiming threats of violent organized groups. Federal officials suggested escalating force, including chemical weapons. And I think chemical weapons there, they mean, you know, tear gas and so on.

Illinois has declined to voluntarily deploy its national guard. In response, president Trump invoked title 10, section twelve four zero six federalizing the National Guard on October 4. So about, what, seventeen days ago as the day of this recording, citing violent attacks on federal facilities and obstruction of immigration enforcement. Defense secretary Pete Hagsteth then ordered an initial 400 troops from Texas National Guard to be deployed in Illinois and into Oregon. Our governor, JB Pritzker, opposed this, arguing that state forces were handling situation effectively.

And that's also you know, that has been argued both in, you know, in briefings that were submitted to the district court and through oral arguments, things like that. The question of local police, state police officers, and so on, have has they been able to handle these these clashes at the Broadridge facility effectively? And the court has ruled, yes, they have. And again, I've seen no evidence, you know, personally to contradict that. Like, you know, people that are there, there are cops there, there are state police officers there.

And, you know, outside of, you know, like I said, probably some instances of people throwing things here and then, which I don't think is even fairly common. I'm speculating. I mean, I'm giving them the benefit of the doubt here. But there hasn't been, you know, instances of, like, people getting mobbed and beaten or whatever, you know, you wanna call it. So under these facts, the federal government, in the context of the lawsuit that was filed by the state of Illinois, they argued these protests were, quote, impeding the execution of the laws in United States, and they're citing specifically to the statutory language that I mentioned earlier in article 10, that allows for federal deployment of guard troops.

The state of Illinois argued that on the ground in Chicago and in Broadview, the facts on the ground do not rise to the level of rebellion or danger of rebellion and that regular forces are able to execute the laws. Discussing this question of, like, what is a rebellion under title 10? What what would constitute a rebellion under the facts here? The seventh circuit so I should note the district court found for the state. Federal government appealed to the seventh circuit, and the seventh circuit, a couple of days ago, issued an order upholding the district court opinion and fighting in favor of the state as well.

Here's what the seventh circuit had to say about what a what is a rebellion under the law. Quote, we start with section twelve four zero six. This is title 10. In the meeting of rebellion or danger of a rebellion, The parties rely on the same dictionaries from the late nineteenth and early twentieth centuries with the administration arguing that rebellion should be read to mean deliberate resistance to the government's laws and authority. Plaintiffs argue plaintiffs instead urged us to define rebellion more narrowly as the district court did as a violent, armed, organized, open, and avowed resistance that is against the government as a whole, often with the aim of overflow overthrowing the government rather than in opposition to a single law or issue, unquote.

Seventh Circuit goes on here. Well, we emphasize that the critical analysis of a rebellion centers on the nature of the resistance to the government authority. Political obsession is not rebellion. A protest does not become a rebellion merely because protesters call protesters advocate for myriad legal or policy changes are well organized, call for significant changes to the structure of the US government, use civil disobedience as a form of protest, or exercise their second amendment right to carry firearms as the law currently allows. Nor does a protest become a rebellion merely because of sporadic and isolated incidents of unlawful activity or even violence committed by rogue participants in the protest.

Such conduct exceeds the scope of the first amendment, of course, and law enforcement has apprehended the perpetrators accordingly. But because rebellions at least use deliberate organized violence to resist governmental authority, the problematic incidents in the in this record clearly fall within the considerable daylight between protected speech and rebellion, unquote. So according to the Seventh Circuit, there's no rebellion that's happening here in Chicago. Here I'm I am gonna editorialize a little bit.

Well, Power off. Just for one second. So that to be clear, that burden is on the federal government. Right? It's the federal government's burden to to prove rebellion.

Yeah. Yeah. Yeah. Okay. Once the once the plaintiff has made their I'm sure they have to make some type of prima facie showing that their rights are being violated and the plaintiff here is the state.

This is a this is the part where I will editorialize a little bit. This is this is anecdotal. Take it for what it's worth. But the Almaden Davis here office in Chicago is at the corner of Michigan Avenue and Randolph Street, which is right in the middle of the loop here in Chicago. I was here, our office was here, but I I was here for the George Floyd protests slash riots, whatever you wanna call them, in 2020 and 2021.

And in that instance, the governor of Illinois, JB Pritzker, did deploy the Illinois guard to assist police units responding to that. Those protests and riots were many, many, many times bigger, more disruptive, severe, damaging, whatever you wanna call it, than anything that I could observe that's happening today. And and it's not just like what I can observe from, like, looking at Twitter or whatever. I mean, I mentioned the placement of our office because we're in the Loop, which is on two sides on three sides surrounded by water here. There's a lot of bridges in Chicago if you wanna get from the Loop to River North, which is a densely populated residential and commercial district.

And if you live on the North Side like I do, you have to go that way. So you have to cross a bridge, at least one to get where you're going. And when the George Floyd stuff was happening, they would lift the bridges, because they're they're draw bridges, so the boats hanging underneath them. They would lift the bridges so as to isolate the loop from the North Side of the city. And I remember very vividly being at the office, and when they were to when the protests and by and candidly, I mean, the protests during daytime were, you know, usually like protest rallies and marches, and then nighttime would tend to become, you know, property damage, violent, things like that.

They would sound this, you know, the siren. It's like the hurricane siren. Like, it's once you hear it, you know it. But to let everyone know in the city that the bridges are going up. And I would be at the office and hear that siren through the window.

And I would be like, crap. I gotta go. Because I gotta get home or else I have to go five or six miles out of the way to get to back to my place. And that was a weekly occurrence in my my recollection. Recollection.

There it was it was that bad. And it was like I don't know if you remember like the Batman movies, the Christian Bale Batman movies, like the the for were filmed in Chicago and, like, the the whole there's a bit in the first Batman movie where, like, there's I think, like, the asylum, all the former criminals get let loose. They raise the bridges to isolate that portion of the city. Like, that's there was film in Chicago. Those were the bridges and, like, that's pretty much what you can, like, mentally, like, picture happening here was that was what was happening.

And so that was, in that instance, the guard was deployed. And whether you, you know, whether you think justified or not, to me, that's like the benchmark, you know, of like, okay, when does and there's nothing like there's nothing remotely close to that happening at all in in Chicago. And I have a a front row seat to it, if it were. So the district court here was presented with, you know, the same evidence that I or at least a lot of the evidence that I can personally observe and conclude that there is no quote unquote rebellion, I'll tell you there is no rebellion happening here in the city. That's that element to me is is just like preposterous.

It it it just is. Like, as a person who lives here and can look at it.

Yeah. To give a little of my own flavor on that. So we represent a number of bars and restaurants in this area as well. And I can tell you during the George Floyd protests, and not necessarily that it had anything to do with with the people that were protesting for that, it's just the nature of the time was chaotic. It was COVID.

It was, you know, BLM movement. It was I I think just people are cooped up too generally and angsty and whatnot. And, you know, losing money constantly. But either way, we did have clients that, you know, their their restaurants were looted and storefronts broken into and property destroyed. I mean, it it was a regular occurrence.

And we have not had any of that. And I will say, so this is kind of, I guess, a little bit I I know you're probably gonna go back to to your story or, you know, to to covering the the legal aspects of this. But before recording this episode, Jack and I said that we kind of view this platform as as unique and that we are, you know, somewhat presenting our opinions on certain things. But ultimately, we're trying to report on legal news from across the country. Right?

And one of the things that I've found recently is that people don't know what to believe. And, you know, you have different commentary coming from different places. So, you know, our our goal here is not to not to share our politics or anything of that flavor, but more so to just give factual, we live here, we you know, we work here, our kids play here, we are experiencing what's happening in Chicago every day of our lives. So all we can do is just provide an this is what we're seeing, these are the facts and you know, draw your own conclusions but this this is just meant to share our our observations of what is happening in our town.

Yeah. And I think that that that's why I I can say I mean, I can use a strong language of saying it's like preposterous, you know, like to to claim there's a rebellion happening here. Because of that, then what was, you know, 2020. Right? If that's the case, like, that was I mean, I I cannot stress, like, that was a 100 times more disruptive and worse than than what is happening.

There there really, there are no protests outside of the Broadview facility, which is not in Chicago. The district court did get into so there like, there's the rebellion aspect of this and then there is the can the president, through use of regular forces, affect and execute the law? So this is the two kind of separate instances by which the president can can exercise authority under article 10. The rebellion aspect that I I I hope that the the audience, you know, understands here is that was not the the bulk of what the administration argued because I think they even realized that it was nonsense, and that was not treated very seriously by by the administration even. But even but, you know, of course, by the district court and by the seventh circuit.

But the second question of, you know, by can the president effectuate the enforcement of laws through, quote, unquote, regular forces? That's the that I would I would say would be the more meritorious of the of the claims. But even that, there just wasn't a lot of evidence in the record. And the record, by the way, is is created by the parties. Right?

So the the record means when the district court talks about the record and when the seventh circuit talks about the record, they're talking about what facts were presented by the parties, which includes the administration here to support this argument. And the record of in support of the administration's position involves, you know, what they would claim is that federal agents were there was violence against federal agents, for example. And like, go ahead and scroll through the news. You could find those examples of those things like, again, like people throwing things, things like that. But there this was put to writing, but, you know, like they had to tally these things up and include them in their briefing on this stuff.

And what the administration was able to come up with was, like, a dozen agents have like suffered minor injuries. I think they they said several had to seek medical care, but the most the only one they added any specifics to was an officer who I believe injured their knee. And there was not an allegation that, like, someone shoved this person and they fell and they tore their knee or whatever. They just said, like, you know, one officer tore his knee. And and it's like, was that stepping out of the car?

Was it you know, it was like, and and I'm not saying that I mean, that's not good. I mean, I I federal agents, it's not good if they're they're getting injured, of course. But in the context of, you know, what's happening, which is thousands of these agents being deployed to the city, chasing people down, frankly, kicking indoors. I'm not exaggerating by those things and all those things. It's kind of remarkable that only a handful of folks have gotten minor injuries here.

So that whole element of, you know, federal agents are being injured was is also like that's I mean, compare that to statistics about normal police officers and the injuries that they suffer on the job as part of the job. Compare that to any other, you know, public servants or whatever. So it's it's just is not outside what you would expect to be the norm or is not unexpected at all. That element of, you know, what the federal agents that are having to deal with here. And they're and they're getting yelled at and people are screaming in their faces and all that stuff and, like, don't get me wrong here.

But that's different than saying, you know, they are unable to to enforce the law because in on one hand, the state argues and says they're claiming they can't enforce the law here in Illinois, but they've made x amount of hundreds of arrests. They they claim very loudly. Yeah. Yeah. Yeah.

The the Department of Homeland Security, I believe, is claiming they made 1,500 arrests in Illinois in the past month for immigration, you know, related things. And they, like, put out these, like, social media videos of them, like, you know, doing these things and perp walking people that are handcuffed and everything else. And it's like, okay. Well, by by their words, they're enforcing the law quite a bit. And if they've, you know, their mission seems to be going just fine according to what they have to say here.

So it's hard for them to come in here and say, we cannot enforce the law. Therefore, we need to send in the guard when in fact, you know, publicly speaking, these these these are facts that were entered into the record as well. They're claiming to have all kinds of success doing that here. So so the seventh circuit, you know, on on appeal here does talk about that. They went on to discuss whether, you know, quote, unquote, regular forces are unable to execute the laws of The United States.

And they say, quote, even applying great deference to the administration's view of the facts. Under the facts as found by the district court, there is insufficient evidence that protest activity in Illinois has significantly impeded the ability of federal officers to execute federal immigration laws. Federal facilities, including the processing facility in Broadview, have remained open despite regular demonstrations against the administration's immigration policies. And though federal officers have encountered sporadic disruptions, they have been quickly contained by local, state, and federal authorities. At the same time, immigration arrests and deportations have proceeded to pace in Illinois over the past year.

The administration has been proclaiming the success of his current efforts to enforce immigration laws in the Chicago area. That's what I'm talking about, their social media posts. Yep. The administration, accordingly, is also unlikely to succeed on this argument. So with this, the Seventh Circuit is held with the deployment of the guard under either of the unable to execute regular force execute the laws of regular forces portion or the rebellion portion of of title 10, those arguments, they're not buying.

And and as it stands, there's a temporary injunction or temporary restraining order in place preventing the federal government from deploying the guard here, which is, you know, where we are currently.

Yeah. And I saw that. So there was an emergency filing by the federal government on October 17 to the Supreme Court to void the Seventh Circuit's order. And interestingly, they are the argument now, and I don't know if this argument was made at the lower court, but they're saying that the president's decision whether to federalize the guard is not subject to second guessing by the state of Illinois or a federal district court that's quoted from from their emergency filings. So now I don't know if they again I don't know if they argued this before but essentially now they're saying this isn't even about whether we can show that there's a rebellion or whether we can show that our federal officers aren't able to execute these immigration laws.

Court you don't even have jurisdiction to review these actions. It's almost like they're saying this is exclusive authority of the executive branch.

Yeah. That that to me seems like an echo of the arguments that were made in the I don't have a case in front of me, I'm sorry. I'm not I don't follow the Supreme Court.

Trump versus Illinois is where oh, wait. No. No. Yeah. The unreviewable executive discretion, that language came from this Trump versus Illinois case, I think.

What I I I was thinking about was the Supreme Court ruling trimming the power of district courts to issue issue national injunctions.

Oh, right. Yeah. We covered that before. Yeah.

Yeah. And and and I I don't follow the supreme court as, like, part of my day job. So I I don't have, like, I don't have that handy. I'm sorry. But but broadly speaking, the the opinion of the of the supreme court was that district court judges, federal district court judges do not have as expansive authority as they have been operating with over the past fifty years or so to issue national injunctions in joining federal policy and instead have to issue more limited rulings, limited to, I think, to the situation of the individual litigants.

So, you know, for example, if the federal government had rolled out roll out a policy, basically the national stop and frisk policy, for example. Right? And say we're going to allow federal officers to just stop people in the street and search their pockets without probable cause or a warrant. Right? A federal district court could rule that violates your fourth and fifth amendment rights.

We're going to enjoin the federal government from from doing this policy against anyone. What the supreme court has recently said is you they can't do that. They can't issue a national injunction in some in a context like that. Their their rulings are, you know, more limited, I believe, to the jurisdiction of the court. I'm not exactly sure.

But in any event, what the administration seems to be doing here is latching on to that sentiment that the district court can't can't tell the federal government what to do here based on the discretion of the executive and the the power of the federal government and so on. So not even so much as trying to argue that they their definition of what's happening here in Illinois fits into, unable to execute the laws or there's rebellion happening. They're just saying, you can't tell us what to do here. Right? And so that's we'll see what the Supreme Court has to say about that.

It's hard to say. I mean, this is not a court watching podcast, and that's like I said, that's not what I do is part of my day job. The Supreme Court the Supreme Court gives a lot of deference to to the executive in its numerated powers under the constitution. So I don't know. Yeah.

I don't I don't know what but that said, I mean, these these are rulings that are limited to the individual states. You know? It is a ruling that is limited to Illinois. It's not a national injunction. Right?

And there's different ruling that just happened, I believe, yesterday in Washington where the was it the ninth circuit?

Ninth circuit. Yeah.

Yeah. Ninth circuit ruled that the government could deploy the the National Guard to Washington. That's gonna be based on an entirely different

Portland, Oregon.

Yeah. So yeah. Sorry. Oregon. I'm sorry.

Yeah. Not Washington. But that's based on an entirely separate set of facts on the ground there. Like, if, you know, it's possible that, you know, the that the federal government is not able to enforce the laws through normal forces in Oregon, and therefore, are justified in deploying the guard, while at the same time that's not happening in Illinois. You know, it's that's so fact dependent.

And so the ruling here is limited to the facts that are in the record, which I I I don't believe support the administration's position.

Yeah. So it seems like then what the federal government is doing in its current emergency appeal to to the Supreme Court is to get a blanket ruling, you know, going forward that its actions to this end are not reviewable. So Right. As much as it is, yes, a state by state situation, it's I think that's the goal right now for for the federal government is to is to get that ruling so that going forward, these district courts aren't even gonna entertain a claim of injunction from the states because, you know, according to the administration, they're gonna, you know, be able to get the Supreme Court to say this is nonreviewable.

Yeah. And and that by steps also the need for the federal government to to show these facts then, if that's the case.

Right.

They the federal government no longer has to meet the factual burden of showing there is a rebellion. You know? They could just say you can tell you can't tell us there's not one. And Right. So be it.

So it'll be interesting to see what happens. I mean, this is gonna move pretty quickly, I would imagine, because there's now conflicting rulings with the Oregon ruling and then, of course, what's happening in Illinois. There was a ruling by California, which is similar to what the seventh circuit ruled here as well. So there is a circuit split here. Now, again, these are factually distinct.

So the court does not have to the Supreme Court would doesn't have to issue a unifying ruling, you know, saying what what powers the government has or doesn't have. The the supreme court has the option of saying, based on the facts in each one of these individual cases, the guard is should have been permitted to be deployed here, but not here. Right? They it doesn't have to take, you know, that position and say, the government is allowed to do this in every state. It can it can, you know, stick to the factual considerations that are in place in every state.

Unless unless they decide to say, actually, district courts have no authority to second guess the executive here. Right. And if that's the case, then then maybe none of this stuff matters.

Oy.

So we'll see. I I I will briefly touch on the the other shoe that might drop here in Illinois, which is the president has discussed multiple times deploying the regular military pursuant to the Insurrection Act. That's a different can of worms. And that would probably be best suited for its own episode because there's a whole different history there, and then there's different standards and so on. But by and large, the the government can claim that there is a insurrection, have separate statutory statutory authority to deploy then, like the marines, you know, if they wanted to, to Illinois based on that.

So thinking about it now, I imagine that the Trump administration wants to get a ruling on this issue that they've put before the Supreme Court on whether the district court can even second guess this at all before they pull the lever on the Insurrection Act because that's kinda drastic. And if they don't need to, then they won't. Right? If they get a green light from the Supreme Court to activate the guard under title 10, then they don't need to go Insurrection Act route, for example. So that's gonna likely affect what the administration decides to do here if I had to guess.

I mean, I'm trying to just, you know, think through how how they're proceeding. But depending on how the supreme court rules and if they don't take the bait and rule on, you know, in a way that's gonna curtail the district court's ability to make these type of rulings at all, then that might be the next step, which is saying that there is a declaring a a an active insurrection and then activating the the US military. And then, you know, we'll go through this process again with the courts if that's the case. So that's what's happening in Chicago, by the way.

Yeah.

That's that's what that's what we're dealing with here. And yeah. It's the other anecdotes that I will share is it's mostly day laborers, nannies, daycare workers. There was an it's a it's a pretty wild story, but there was a, a raid on an apartment building on the South Side Of Chicago, about two weeks ago. And it's, I believe there's 50 units or so in the building, apartments in the building.

Almost every single one of those building those units were, searched in the in the middle of the night. This was the, again, was all over the government's social media. They produced this to make it look like Black Hawk Down, like, guys rappelling from helicopters in the middle of the night, folks, you know, in full tactical gear, like, going through hallways with their guns out and everything. And that because they believe their justification is they're acting on, you know, information that there were active gang members. It's the I believe is the the Mexican cartel gang that that they're looking for here.

So illegal immigrants that are also engaged in, you know, smuggling, human trafficking, drug running, and so on. What they said was that this building was like a hub for that. Right? What happened was one person has been arrested from that raid. Several 100 people were detained, most of whom were US citizens, as far as I understand.

This involved people getting their doors kicked down at, like, two or three in the morning. Some people were, you know, not dressed, you know, their people were woken up. They they separated kids into one area. There's reports from the folks at witnesses that that all the kids were put in handcuffs, and they were loaded in the back of a U Haul van, and they sat there for several hours. And then they sorted the adults out in in different ways.

To this point, there has been no record of a warrant having been produced for this search. There has been nothing of that sort that would, you know, to a normal a normal person kind of justify or explain this serious like, I mean, this is I mean, this was a military style operation here that happened in Chicago. And like I said, only one person has been arrested, for that rate of the several 100 people who, like I said, they were they had the doors kicked down. They were, they also had their apartments, like, ransacked. Like, people that were there were they tore through all of their stuff looking for things.

So they had, you know, their their possessions, their apartments, and, of course, you know, their own bodies locked up, in the middle of the night. And most of these folks were American citizens or legal residents. So that's that level of enforcement that we're dealing with here and the other aspects of it, is ICE agents going into day cares and getting people out of there, going into job sites and all those things.

Chicago Public Schools.

Public Schools has been extremely disruptive.

Our local our court here, the chief judge just issued a ruling, I wanna say a week ago now, that any ICE agent that is outside the courthouse, you know, looking to detain someone or within the courthouse is subject to arrest by local authorities because that was another issue is that you had residents or, you know, immigrants coming to court because that's part of, you know, that's something they need to do. They need to report or they need to fill out paperwork or they need to renew, and they were being detained for, you know, doing what they were supposed to do.

Yeah. So it's like I said, it's extremely disruptive. The enforcement actions, the ICE actions, operations, like that are it's it's affecting my daily life quite a bit. A lot of people's. So which, you know, doesn't justify, you know, any acts of, like, retribution or violence or anything on those lines.

Don't get me wrong here. But it's creating quite a bit of chaos in the city. And it's creating chaos that did not exist prior to operation midway blitz or whatever you wanna call it. So, that's that's our dispatch from Chicago. You can find us on Apple Podcasts, Spotify, YouTube, wherever you get your shows.

We publishsh as often as we can. Typically, we've been doing every two weeks lately. We've been bogged down with our own with our day jobs here as practicing attorneys. But we we've covered some topics today that we wanna stay on top of, and check back in with us as we do our best to keep you updated on these particular stories.