Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Applicants v. Illinois, et al.
Supreme Court briefOct 20, 2025
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No. 25A443
______________________________________________________________________________
IN THE
Supreme Court of the United States
________________________________________
DONALD J. TRUMP, et al.,
Petitioners,
v.
STATE OF ILLINOIS, et al.,
Respondents.
________________________________________
ON EMERGENCY APPLICATION FOR STAY
________________________________________
TO THE HONORABLE AMY CONEY BARRETT, ASSOCIATE JUSTICE OF THE SUPREME
COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE SEVENTH CIRCUIT
________________________________________
BRIEF OF AMICI CURIAE FORMER U.S. ARMY AND NAVY
SECRETARIES AND RETIRED FOUR-STAR ADMIRALS AND
GENERALS
________________________________________
Karen L. Dunn
Jeannie S. Rhee
John Paredes**
DUNN ISAACSON RHEE LLP
401 Ninth Street, NW
Washington, DC 20004
Beau Tremitiere*
PROTECT DEMOCRACY UNITED
300 Center Drive, Suite G-251
Superior, CO 80027
(202) 579-4582
beau.tremitiere@protectdemocracy.org
Margaret E. Truesdale
HUGHES SOCOL PIERS RESNICK &
DYM, LTD.
70 W. Madison Street, Suite 4000
Chicago, IL 60602
Jane Bentrott
PROTECT DEMOCRACY UNITED
2020 Pennsylvania Ave NW, #163
Washington, DC 20006
**Admitted in NY only. Practice
supervised by D.C. Bar members.
*Counsel of Record
Counsel for Amici Curiae
______________________________________________________________________________
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ..................................................................................................... ii
INTEREST OF AMICI CURIAE ............................................................................................. 1
INTRODUCTION ....................................................................................................................... 2
FACTUAL BACKGROUND ..................................................................................................... 4
ARGUMENT ................................................................................................................................ 8
I.
The Posse Comitatus Act Prohibits the Military from Acting as
Domestic Law Enforcement Absent Express Congressional
Authorization ....................................................................................................... 8
II.
The Posse Comitatus Act Permits Non-Law-Enforcement Uses of
Military Personnel for National Security and Civil Support; Violations
Divert Them from Their Primary Mission .................................................. 10
III.
National Guard Personnel Are Not Trained to Operate in the Context
of Domestic Law Enforcement ....................................................................... 15
IV.
To Avoid Politicization of the Military, Deploying Military Personnel to
Assist with Law Enforcement Should Be a Last Resort .......................... 18
CONCLUSION .......................................................................................................................... 25
APPENDIX................................................................................................................................. 27
i
TABLE OF AUTHORITIES
Page
Cases
Bissonette v. Haig,
776 F.2d 1384 (8th Cir. 1985) .................................................................................... 16
Greer v. Spock,
424 U.S. 828 (1976) ................................................................................................ 19, 22
Illinois v. Trump,
No. 1:25-cv-12174 (N.D. Ill. Oct. 6, 2025)................................................................ 14
Laird v. Tatum,
408 U.S. 1 (1972) ............................................................................................................. 8
Newsom v. Trump,
786 F. Supp. 3d 1235 (N.D. Cal. 2025),
stayed pending appeal, 141 F.4th 1032 (9th Cir. 2025) ............................. 4, 21, 23
Oregon v. Trump,
No. 3:25-cv-1756, (D. Or. Oct. 4, 2025) ...................................................................... 6
United States v. Allred,
867 F.2d 856 (5th Cir. 1989) ...................................................................................... 18
United States v. Casper,
541 F.2d 1275 (8th Cir. 1976) .................................................................................... 16
United States v. McArthur,
419 F. Supp. 186 (D.N.D. 1975) ................................................................................. 16
United States v. Red Feather,
392 F. Supp. 916 (D.S.D. 1975).................................................................................. 16
Statutes
10 U.S.C. § 12406.................................................................................................................... 4, 7
10 U.S.C. § 253 ............................................................................................................................ 9
10 U.S.C. § 275 ............................................................................................................................ 3
18 U.S.C. § 1385 ................................................................................................................ 2, 9, 10
ii
Constitutional Provisions
U.S. Const. amend. III ............................................................................................................... 8
U.S. Const. amend. IV ............................................................................................................... 8
Executive Orders
Exec. Order No. 14339, 90 Fed. Reg. 42121 (Aug. 28, 2025) ........................................ 5, 6
Exec. Order No. 14347, 90 Fed. Reg. 43893 (Sept. 5, 2025) .............................................. 6
Other Authorities
About the Guard: How We Began,
NATIONAL GUARD, https://www.nationalguard.mil/About-theGuard/How-We-Began ................................................................................................... 2
Body slamming, teargas and pepper balls: viral videos show Ice using extreme force
in Chicago, THE GUARDIAN (Oct. 4, 2025), https://www.theguardian.com/usnews/2025/oct/04/ice-chicago-extreme-force-protestersjournalists#:~:text=Local%20journalists%20have%20been%20detained,Chica
go%20for%20over%2015%20years ............................................................................ 22
Border Patrol spotted with guns on Chicago River in Trump's latest deportation
push, CHICAGO SUN-TIMES (Sept. 26, 2025),
https://chicago.suntimes.com/immigration/2025/09/25/border-patrol-chicagoriver-immigration-enforcement-greg-bovino-deportation ................................... 22
Bragg Soldiers Who Cheered Trump’s Political Attacks While in Uniform Were
Checked for Allegiance, Appearance, MILITARY.COM (June 11, 2025),
https://www.military.com/daily-news/2025/06/11/bragg-soldiers-who-cheeredtrumps-political-attacks-while-uniform-were-checked-allegianceappearance.html ........................................................................................................... 24
Calling Members of the Oregon National Guard into Federal Service,
DEPARTMENT OF WAR (Sept. 28, 2025),
https://www.documentcloud.org/documents/26159492hegsethmemosept282025/ ............................................................................................. 6
Chicago and Illinois sue to stop Trump’s Guard deployment plan after Portland
ruling, ASSOCIATED PRESS (Oct. 6, 2025), https://apnews.com/article/nationalguard-portland-chicago-trump-a35549dc8d198b0270eaa95e5230ba94 ........... 24
iii
Civil-Military Relations: Guidelines in Politically Charged Societies, in 52
PARAMETERS 5, 7-8 (Mar. 3, 2022),
https://press.armywarcollege.edu/cgi/viewcontent.cgi?article=3126&
context=parameters ..................................................................................................... 20
Department of Defense Security for the Protection of Department of Homeland
Security Functions, WHITE HOUSE (June 7, 2025),
www.whitehouse.gov/presidential-actions/2025/06/department-of-defensesecurity-for-the-protection-of-department-of-homeland-security-functions/ .... 5
The Flawed Emergency Response to the 1992 Los Angeles Riots (A),
KENNEDY SCH. OF GOV’T CASE PROGRAM (Sept. 1, 2000),
https://case.hks.harvard.edu/the-flawed-emergency-response-to-the1992-los-angeles-riots-a/ ............................................................................................. 17
From passing mention to authorized deployment: A timeline of the president’s
pressure on Portland, OPB (Sept. 29, 2025),
https://www.opb.org/article/2025/09/29/timeline-donald-trump-pressureportland/............................................................................................................................ 5
GOOD TOOL, WRONG TASK: ARMED FORCES IN LAW ENFORCEMENT
OPERATIONS, WAR ROOM (July 17, 2018),
https://warroom.armywarcollege.edu/articles/armed-forces-in-lawenforcement/................................................................................................................... 15
Gov. Henry McMaster Authorizes Deployment of National Guard to Washington,
D.C., S.C. OFFICE OF THE GOVERNOR (Aug. 16, 2025),
https://governor.sc.gov/news/2025-08/gov-henry-mcmaster-authorizesdeployment-national-guard-washington-dc ............................................................ 13
Guardians of the Republic: Only a Nonpartisan Military Can Protect American
Democracy, FOREIGN AFFAIRS (Jan. 5, 2023),
https://www.foreignaffairs.com/united-states/guardiansrepublic?check_logged_in=1&utm_medium=promo_email&utm_source=lo_flo
ws&utm_campaign=article_link&utm_term=article_email&utm_content=202
50916 ........................................................................................................................... 8, 20
Hegseth Authorizes National Guard Troops in D.C. to Carry Weapons,
NBC NEWS (Aug. 22, 2025), https://www.nbcnews.com/news/us-news/
hegseth-authorizes-national-guard-troops-dc-carry-weapons-rcna226536 ..... 17
Hegseth Authorizes Troops in D.C. to Carry Weapons,
N.Y. TIMES (Aug. 22, 2025),
https://www.nytimes.com/2025/08/22/us/politics/national-guardweapons.html#:~:text=Mr.,Pentagon%20and%20the%20U.S.%20military .... 17
iv
Helicopters, tear gas, blown doors: A look at recent scenes in Chicago,
NBC CHICAGO (Oct. 6, 2025),
https://www.nbcchicago.com/news/local/helicopters-tear-gasblown-doors-a-look-at-recent-scenes-in-chicago/3834233/ ................................... 18
How Chicago, Baltimore and New Orleans are reacting to Trump's National Guard
threats, NPR (Sept. 5, 2025), https://www.npr.org/2025/09/05/nx-s15530051/trump-national-guard-chicago-baltimore-new-orleans ......................... 7
ICE Is ‘Making War’ On Broadview — And It Must Stop, Suburban Mayor Says,
BLOCK CLUB CHICAGO (Sept. 26, 2025),
https://blockclubchicago.org/2025/09/26/ice-is-making-war-onbroadview-and-it-must-stop-suburban-mayor-says/ ............................................. 12
“The Insurrection Act” by Any Other Name: Unpacking Trump’s Memorandum
Authorizing Domestic Deployment of the Military, JUST SECURITY (June 10,
2025), https://www.justsecurity.org/114282/memorandum-national-guard-losangeles/ ............................................................................................................................. 9
Mayor Harris, Mayor Young comment on possible National Guard deployment,
FOX13 (Sept. 11, 2025), https://www.fox13memphis.com/news/mayor-harrismayor-young-comment-on-possible-national-guarddeployment/article_bbba041f-c016-441f-99bc-314a0dca02c0.html ..................... 5
Mayor Muriel Bowser Says Trump’s Surge of Federal Law Enforcement Has
Lowered Crime in D.C., NBC NEWS (Aug. 27, 2025),
https://www.nbcnews.com/politics/politics-news/bowser-trump-policetakeover-lower-dc-crime-national-guard-ice-rcna227582.................................... 24
Michael D. Doubler, I Am The Guard: A History of The Army National Guard, 16362000 (2001),
https://www.nationalguard.mil/portals/31/Documents/About/Publications/Doc
uments/I%20am%20the%20Guard.pdf ...................................................................... 2
National Guard Diversion to Los Angeles Weakens California's Wildfire Defenses,
MENDOCINO COUNTY PUBLIC BROADCASTING (July 7, 2025),
https://www.kzyx.org/2025-07-07/national-guard-diversion-to-los-angelesweakens-californias-wildfire-defenses ..................................................................... 13
National Guard documents show public ‘fear,’ veterans’ ‘shame’ over D.C. presence,
WASHINGTON POST (Sept. 10, 2025),
https://www.washingtonpost.com/national-security/2025/09/10/nationalguard-trump-dc/ ............................................................................................................ 14
National Guard members supporting ICE operations working without pay during
government shutdown, LIVENOW FOX (Oct. 3, 2025),
v
https://www.livenowfox.com/news/national-guard-members-work-withoutpay-government-shutdown ......................................................................................... 15
The National Guard Soldier Pissed About Trump’s DC Takeover,
MOTHER JONES (Sept. 3, 2025),
https://www.motherjones.com/politics/2025/09/national-guard-morale-dctakeover-interview-soldiers-pissed-angry/ .............................................................. 14
The National Guard: Strengthening Local Communities Through Service and
Support, AFBA (Apr. 8, 2024), https://www.afba.com/uniformed-servicesnews/national-guard/the-national-guard-strengthening-local-communitiesthrough-service-and-support/ ..................................................................................... 11
One Civilian injured in crash with D.C. National Guard military vehicle,
NPR (Aug. 20, 2025), https://www.npr.org/2025/08/20/g-s1-83950/nationalguard-dc-crash ............................................................................................................... 18
Opinion: What we lose by distorting the mission of the National Guard,
ANCHORAGE DAILY NEWS (Sept. 5, 2025),
https://www.adn.com/opinions/national-opinions/2025/09/05/opinion-what-welose-by-distorting-the-mission-of-the-nationalguard/#:~:text=The%20National%20Guard%20has%20become,and%
20letters%20to%20the%20editor ........................................................................ 12, 14
Our History, ARMY NATIONAL GUARD (2025),
https://nationalguard.com/guard-history .................................................................. 2
Political Activities By Members of the Armed Forces,
U.S. DEP’T OF DEF., (Feb. 19, 2008),
https://www.fvap.gov/uploads/FVAP/Policies/doddirective134410.pdf............. 19
The Posse Comitatus Act and Related Matters: The Use of the Military to Execute
Civilian Law (2018) (citations omitted), https://www.congress.gov/crsproduct/R42659 ............................................................................................................. 10
Rough Seas Ahead: Steering the Military Profession,
WAR ON THE ROCKS (Mar. 4, 2025), https://warontherocks.com/2025/
03/rough-seas-ahead-steering-the-military-profession/ ....................................... 19
Texas Guardsmen Rescue Over 520 Flood Victims, THE NATIONAL GUARD
ASSOCIATION OF THE UNITED STATES (July 8, 2025),
https://www.ngaus.org/newsroom/texas-guardsmen-rescue-over-520-floodvictims ............................................................................................................................. 11
THREADS (Sept. 2, 2025),
https://www.threads.com/@kenklipp/post/DOGuxh0igjL/videovi
amid-morale-problems-dc-national-guard-commander-issued-a-message-ofgratitude-t ...................................................................................................................... 24
To Support and Defend: Principles of Civilian Control and Best Practices of CivilMilitary Relations, WAR ON THE ROCKS (Sept. 6, 2022)
https://warontherocks.com/2022/09/to-support-and-defend-principles-ofcivilian-control-and-best-practices-of-civil-military-relations/ ........................... 20
Trump defends use of the U.S. military against the 'enemy within',
NPR (Sept. 30, 2025), https://www.npr.org/2025/09/30/nx-s15557232/hegseth-generals-trump ............................................................................... 7
Trump says he’ll send National Guard to Memphis, escalating his use of troops in
US cities, ASSOCIATED PRESS (Sept. 12, 2025),
https://apnews.com/article/trump-memphis-national-guard-federalintervention-73a7747f02bdf111574cbe9cc59201dd ................................................ 5
Trump Signs Off on Sending the National Guard to Memphis,
N.Y. TIMES (Sept. 15, 2025),
https://www.nytimes.com/2025/09/15/us/politics/trump-memphisnational-guard-crime.html ........................................................................................... 6
Trump walks back Chicago 'war' threat, but vows to 'clean up' cities,
NPR (Sept. 7, 2025), https://www.npr.org/2025/09/07/nx-s1-5533191/trumpchicago-threat-baltimore-new-orleans ....................................................................... 7
Trump Warns Protests at Military Parade Will Be Met With Force,
REUTERS (June 11, 2025), https://www.reuters.com/world/us/trump-warnsprotests-army-parade-will-be-met-with-very-big-force-2025-06-10 .................. 25
Trump’s use of Guard may have lasting impact on cities and troops,
WASHINGTON POST (Oct. 6, 2025),
https://www.washingtonpost.com/nation/2025/10/06/national-guarddeployment-chicago-portland-trump/ ....................................................................... 23
With no end in sight, National Guard troops deployed to DC grow weary,
CNN POLITICS (Sept. 4, 2025),
https://www.cnn.com/2025/09/04/politics/national-guardsmen-deployed-to-dcbalance ............................................................................................................................ 24
vii
INTEREST OF AMICI CURIAE 1
Amici are former secretaries of the Army and Navy and retired four-star
admirals and generals. Collectively, they served under each president from John F.
Kennedy to Barack Obama.
Amici are interested in this case because presidential deployment of the
National Guard to perform local law enforcement should be rare, carefully considered,
and in strict compliance with the Posse Comitatus Act. Deployments that fail to
adhere to these long-established guardrails threaten the Guard’s core national
security and disaster relief missions; place deployed personnel in fraught situations
for which they lack specific training, thus posing safety concerns for servicemembers
and the public alike; and risk inappropriately politicizing the military, creating risks
to recruitment, retention, morale, and cohesion of the force.
This submission is based on amici’s collective experience serving in and leading
our military, their direct experience commanding active-duty service personnel, and
their interest in preserving our military’s apolitical role in safeguarding national
security.
Amici are Admiral Steve Abbot, U.S. Navy (Retired); Admiral Thad
Allen, U.S. Coast Guard (Retired); Former Secretary of the Army Louis
Caldera; General George Casey, U.S. Army (Retired); General Michael
Hayden, U.S. Air Force (Retired); Admiral Samuel Jones Locklear, III, U.S.
1 In accordance with Supreme Court Rule 37.6, amici affirm that no counsel for a party
authored this brief in whole or in part, and that no person other than amici or their counsel
made a monetary contribution to its preparation or submission.
1
Navy (Retired); General Craig McKinley, U.S. Air Force (Retired); Former
Secretary of the Navy Sean O’Keefe; Admiral Bill Owens, U.S. Navy
(Retired). Amici’s short biographies in the Appendix capture a measure of their
distinguished service, as well as their expertise on matters encompassing the mission
of the military and the well-being of those in uniform.
INTRODUCTION
The National Guard, founded in 1636 as a citizen-soldier force, has a dual
mission: (1) to serve as a reserve component of the active-duty military, and (2) to
protect life and property within communities at home. 2 In the Guard’s long and proud
history, its members have fought in nearly every U.S. conflict since the Revolutionary
War and saved countless lives in domestic disaster responses – indeed, thousands of
members of the Guard are deployed abroad on any given day. 3
Another tradition older than the nation itself is the strong aversion to military
personnel under control of the national government engaging in local law
enforcement. This prohibition was codified in 1878 in the Posse Comitatus Act, 4 18
U.S.C. § 1385, and has continued as a bedrock of American federalism and civil-
See
About
the
Guard:
How
We
Began,
NATIONAL
GUARD,
https://www.nationalguard.mil/About-the-Guard/How-We-Began (last visited Sept. 26,
2025); Our History, ARMY NATIONAL GUARD (2025), https://nationalguard.com/guard-history.
2
3 See Michael D. Doubler, I Am The Guard: A History of The Army National Guard, 1636-
2000
(2001),
https://www.nationalguard.mil/portals/31/Documents/About/Publications/Documents/I%20a
m%20the%20Guard.pdf.
4 The Posse Comitatus Act prohibits federal military personnel from acting as a domestic
police force unless doing so is “expressly authorized by the Constitution or Act of Congress.”
18 U.S.C. § 1385.
2
military relations ever since. While there are important exceptions for extraordinary
circumstances, the Act reflects the straightforward and heretofore uncontroversial
expectation that the President not use the American military to police America. One
extraordinary circumstance supporting an exception to this prohibition is an internal
rebellion justifying invocation of the Insurrection Act. Federal law also recognizes
that states may authorize National Guard under their control to support local law
enforcement in their own communities. Notwithstanding these limited exceptions,
strict adherence to this principle – that military personnel operating at the direction
of the President and his subordinates may not engage in domestic law enforcement –
has been a touchstone of Republican and Democratic administrations alike.
Experience has taught amici that this commitment keeps our military stronger
and our communities safer. Any domestic deployment that fails to comply with the
foundational principles of the Posse Comitatus Act and similar authorities 5 poses
risks to the core mission of the Guard, the well-being of the troops, and the safety of
the communities they are committed to protect. First, deploying military personnel
in the context of domestic law enforcement diverts them from their primary mission,
which is to train and to be ready to fight and win the nation’s wars and protect
communities after disasters. Accordingly, such assignments come at the expense of
local, state, and national safety, as well as troop morale. Second, active-duty National
Guard personnel are neither intended nor specifically trained to conduct domestic
5 For example, 10 U.S.C. § 275, which restricts the direct participation of military personnel
in activities like searches, seizures, and arrests, with exceptions requiring authorization by
law or regulation.
3
law enforcement operations. This poses a danger to the safety of the troops and the
public. Third, use of federal military personnel in the context of law enforcement
should be a last resort to avoid the politicization of the military, which inevitably
erodes public trust, hurts recruitment, and undermines morale. Peaceful protests of
government actions are constitutionally protected speech deserving of the highest
protection, not intimidation by the military.
Amici submit this brief to more fully explain these risks and assist the Court
in its disposition of the pending motion.
FACTUAL BACKGROUND
The summer and early fall of 2025 have witnessed stark deviations from the
traditional roles of the National Guard. Beginning in June, following protests at ICE
facilities in Los Angeles, President Trump issued orders federalizing and deploying
the California National Guard in southern California over the objections of
California’s governor. Underscoring the aberrational nature of that deployment, a
federal court found that the actions the troops were ordered to undertake in
California violated the Posse Comitatus Act. 6 Notably, that deployment was pursuant
to a presidential memorandum broadly authorizing the federalization of National
Guard under 10 U.S.C. § 12406 at locations “where protests against [Federal]
functions [were] occurring or are likely to occur.” 7
6 See Newsom v. Trump, 786 F. Supp. 3d 1235, 1242–43 (N.D. Cal. 2025), stayed pending
appeal, 141 F.4th 1032 (9th Cir. 2025).
Memorandum from President Donald J. Trump to Attorney General Pam Bondi and
Secretary of Homeland Security Kristi Noem, Department of Defense Security for the
Protection of Department of Homeland Security Functions, WHITE HOUSE (June 7, 2025),
7
4
Continuing this recent – and concerning – trend, President Trump declared a
crime emergency in Washington, D.C. in August and began to deploy to the District
the D.C. National Guard as well as Guard troops from eight cooperating states. As in
California, the local authorities – in D.C., the Mayor – neither requested nor agreed
to these deployments. Unlike in the California litigation, in D.C. the Administration
did not dispute that law enforcement was a central purpose of the Guard’s
deployment there. Rather, the federal government expressly described the mission as
designed in part to address crime. 8
The next city to receive a deployment was Memphis in September for the stated
purpose of addressing crime in the city. 9 Similar to the circumstances in Washington,
D.C., Memphis’s mayor did not agree to the deployment of troops. 10 The trend
continued weeks later when President Trump posted on social media that he would
send troops to “War ravaged Portland,” authorizing “Full Force, if necessary.” 11
www.whitehouse.gov/presidential-actions/2025/06/department-of-defense-security-for-theprotection-of-department-of-homeland-security-functions/.
8 Exec. Order No. 14339, 90 Fed. Reg. 42121 (Aug. 28, 2025).
9 Jonathan Mattise, Trump says he’ll send National Guard to Memphis, escalating his use of
troops in US cities, ASSOCIATED PRESS (Sept. 12, 2025), https://apnews.com/article/trumpmemphis-national-guard-federal-intervention-73a7747f02bdf111574cbe9cc59201dd.
10 The mayor of Memphis commented that, while federal support to reduce crime would be
welcome, such support “shouldn’t come in the form of military personnel, people carrying
semi-automatic weapons and driving around in armored vehicles.” Kayla Solomon, Mayor
Harris, Mayor Young comment on possible National Guard deployment, FOX13 (Sept. 11,
2025),
https://www.fox13memphis.com/news/mayor-harris-mayor-young-comment-onpossible-national-guard-deployment/article_bbba041f-c016-441f-99bc-314a0dca02c0.html.
Michelle Wiley, From passing mention to authorized deployment: A timeline of the
president’s
pressure
on
Portland,
OPB
(Sept.
29,
2025),
https://www.opb.org/article/2025/09/29/timeline-donald-trump-pressure-portland/.
11
5
Secretary Hegseth then issued a memo authorizing the federalization and
deployment of 2000 members of the Oregon National Guard. 12 Again, this deployment
was over the objection of the governor of Oregon. 13
Against this backdrop, in early September, President Trump signed an order
renaming the Department of Defense the Department of War. The order purports to
“sharpen[] the Department’s focus on [] our adversaries’ focus on our willingness and
availability to wage war to secure what is ours.” 14 Aligning with a transformation in
civil-military relations toward widespread domestic peacetime deployment of the
military, the President has also ordered the Department to “ensure the availability
of a standing National Guard quick reaction force that shall be resourced, trained,
and available for rapid nationwide deployment.” 15
Consistent with an increasingly aggressive posture, President Trump has
promised to deploy the National Guard to police more American cities: “We’re going
to take care of all of them step by step, just like we did in D.C.” 16 These public
Memorandum from Secretary of War Pete Hegseth to the Adjutant General, Oregon
National Guard through: The Governor of Oregon, Calling Members of the Oregon National
OF
WAR
(Sept.
28,
2025),
Guard
into
Federal
Service,
DEPARTMENT
https://www.documentcloud.org/documents/26159492-hegsethmemosept282025/.
12
13 Opinion at 14, Oregon v. Trump, No. 3:25-cv-1756, (D. Or. Oct. 4, 2025), ECF No. 56,
https://storage.courtlistener.com/recap/gov.uscourts.ord.189270/gov.uscourts.ord.189270.56.
0_1.pdf.
14 Exec. Order No. 14347, 90 Fed. Reg. 43893 (Sept. 5, 2025).
15 Exec. Order No. 14339, supra note 8.
16 Luke Broadwater & Emily Cochrane, Trump Signs Off on Sending the National Guard to
TIMES
(Sept.
15,
Memphis,
N.Y.
https://www.nytimes.com/2025/09/15/us/politics/trump-memphis-national-guardcrime.html.
6
2025),
pronouncements sometimes name specific cities as future targets for military
deployment, including Chicago, Baltimore, New Orleans, and St. Louis. 17 One of the
President’s social media posts warned that Chicago was “about to find out why it’s
called the Department of WAR.” 18
On October 4, the Administration followed through on that threat. Secretary
Hegseth invoked 10 U.S.C. § 12406 to federalize up to 300 members of the Illinois
National Guard, over the objection of the governor of Illinois. The following day,
Secretary Hegseth invoked the same statute to federalize up to 400 additional
National Guard troops – this time from Texas – to deploy into Chicago.
Over the past several months, the Administration has abandoned the
American tradition against domestic deployment of the military, embracing instead
what the District Court of Oregon described as “martial law.” 19 The Administration
has suggested it plans to use U.S. cities as “training grounds” for the military, turning
our troops on the “enemy within” 20 – the very people they have sworn to protect, with
Rachel Treisman, How Chicago, Baltimore and New Orleans are reacting to Trump's
National Guard threats, NPR (Sept. 5, 2025), https://www.npr.org/2025/09/05/nx-s15530051/trump-national-guard-chicago-baltimore-new-orleans; Broadwater & Cochrane,
supra note 16.
17
18 Joe Hernandez & Kat Lonsdorf, Trump walks back Chicago 'war' threat, but vows to 'clean
up' cities, NPR (Sept. 7, 2025), https://www.npr.org/2025/09/07/nx-s1-5533191/trumpchicago-threat-baltimore-new-orleans.
19 Opinion at 30, supra note 13.
20 NPR Washington Desk, Trump defends use of the U.S. military against the ‘enemy within’,
NPR (Sept. 30, 2025), https://www.npr.org/2025/09/30/nx-s1-5557232/hegseth-generalstrump.
7
their own lives if necessary. Thousands of troops have been deployed in our
communities over the objection of local leaders, with the promise of more.
ARGUMENT
I.
The Posse Comitatus Act Prohibits the Military from Acting as
Domestic Law Enforcement Absent Express Congressional
Authorization
The general expectation that the military will not engage in domestic civilian
law enforcement is foundational to American civil-military relations. Long before
Congress enacted the Posse Comitatus Act in 1878, the U.S. Constitution and
American tradition aimed to avoid repeating the British military’s police state-like
presence in colonial society. “Over the centuries, American political and military
leaders ingrained in the U.S. military a nonpartisan commitment to support and
defend not any person or party but the Constitution itself. This nonpartisan
commitment *** mitigates against the most extreme threats to the republic, from
insurrection to civil war.” 21 See, e.g., U.S. Const. amend. III, IV; Laird v. Tatum, 408
U.S. 1, 15 (1972) (discussing the “traditional and strong resistance of Americans to
any military intrusion into civilian affairs,” a “tradition [that] has deep roots in our
history”). This tradition was later codified in the Posse Comitatus Act, which now
reads: “Whoever, except in cases and under circumstances expressly authorized by
the Constitution or Act of Congress, willfully uses any part of the Army, the Navy,
21 Joseph F. Dunford Jr., et al., Guardians of the Republic: Only a Nonpartisan Military Can
AFFAIRS
(Jan.
5,
2023),
Protect
American
Democracy,
FOREIGN
https://www.foreignaffairs.com/united-states/guardiansrepublic?check_logged_in=1&utm_medium=promo_email&utm_source=lo_flows&utm_cam
paign=article_link&utm_term=article_email&utm_content=20250916.
8
the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise
to execute the laws shall be fined under this title or imprisoned not more than two
years, or both.” 22
Notably, the Posse Comitatus Act permits U.S. military engagement in
domestic law enforcement when expressly authorized by Congress. This, too, is
consistent with experience and tradition, as the country has at times relied on the
military to lawfully intercede during periods of internal crisis. For example, President
Eisenhower federalized Guard troops to enforce Brown v. Board of Education’s
command to desegregate schools, requiring the Guard to play a rare but critical role
in upholding the Constitution. Consistent with this need, a significant exception to
the Posse Comitatus Act is the Insurrection Act. When invoked, the Insurrection Act
gives limited authority to the President to deploy federal troops to quell “any
insurrection, domestic violence, unlawful combination, or conspiracy against the
United States government and to execute federal civil rights laws when they are
obstructed. 23 That authority has been used sparingly throughout our history, and
rightfully so in a democracy governed by civilians elected by the people.
Significantly, federalized Guard troops are legally equivalent to active-duty
forces and therefore are subject to the Posse Comitatus Act. In the rare cases where
a president lawfully invoked the Insurrection Act to address civil unrest, the
22 Posse Comitatus Act, 18 U.S.C. § 1385.
10 U.S.C. § 253. For background on the Insurrection Act, see Elizabeth Goitein, “The
Insurrection Act” by Any Other Name: Unpacking Trump’s Memorandum Authorizing
Domestic Deployment of the Military, JUST SECURITY (June 10, 2025),
https://www.justsecurity.org/114282/memorandum-national-guard-los-angeles/.
23
9
condition of the Posse Comitatus Act that activities be “expressly authorized by ***
[an] Act of Congress” was satisfied. 24 This was the case, for instance, when President
George H.W. Bush invoked the Insurrection Act and federalized Guard troops—upon
the governor’s request—to quell the Los Angeles riots in 1992.
President Trump has not invoked the Insurrection Act or other comparable
authority in relation to the events that underlie this lawsuit. As such, the conduct of
any federalized National Guard troops deployed in Illinois should conform to the
prohibitions on law enforcement activities set forth in the Posse Comitatus Act.
Indeed, “the military has a long-standing practice of avoiding involvement in civilian
affairs which it believes are contrary to the [Posse Comitatus] act.” 25 As discussed
infra, several important civil-military values reinforce the guardrails imposed by the
Posse Comitatus Act and should inform any domestic deployment.
II.
The Posse Comitatus Act Permits Non-Law-Enforcement Uses of
Military Personnel for National Security and Civil Support;
Violations Divert Them from Their Primary Mission
The National Guard is unique within the military as a dual-status force with
state and federal responsibilities, allowing it to be activated under the authority of
either state or federal leadership, pursuant to strict legal limitations. The Guard
plays a critical role in protecting national security as the primary combat reserve of
24 18 U.S.C. § 1385.
Jennifer K. Elsea, CONG. RSCH. SERV., R42659, The Posse Comitatus Act and Related
Matters: The Use of the Military to Execute Civilian Law (2018) (citations omitted),
https://www.congress.gov/crs-product/R42659.
25
10
the U.S. Army and Air Force. Within the U.S., the Guard primarily provides domestic
civil support, natural disaster relief, border security, election support, and other
support as requested by governors and/or the President. In rare times of civil unrest,
the Guard has been called to provide law enforcement support, but almost always
under the direction of the relevant governor—not the President. With limited
exceptions, the Posse Comitatus Act prohibits the Guard from engaging in domestic
law enforcement while in federalized status.
According to the National Guard Association of the United States, “[t]he
National Guard are a critical component of disaster response across the nation, with
members trained to use military expertise and equipment [to] provide fast and
effective emergency support in severe weather events such as hurricanes and
wildfires, and to conduct search and rescue operations.” 26 Each state’s Guard is vital
to its disaster preparedness and emergency response needs. To do this work
effectively, the Guard relies on the trust of the local communities they serve. In each
state, the Guard is called upon for innumerable tasks requiring the cooperation and
trust of the community, including rescuing stranded families from floodwaters,
airlifting individuals from remote locations, providing medical services to
communities in dire situations, and training local first responders. 27 This work is put
26 Zita Fletcher, Texas Guardsmen Rescue Over 520 Flood Victims, THE NATIONAL GUARD
ASSOCIATION OF THE UNITED STATES (July 8, 2025), https://www.ngaus.org/newsroom/texasguardsmen-rescue-over-520-flood-victims.
The National Guard: Strengthening Local Communities Through Service and Support,
AFBA (Apr. 8, 2024), https://www.afba.com/uniformed-services-news/national-guard/thenational-guard-strengthening-local-communities-through-service-and-support/.
27
11
at risk when the Guard is called into politically charged situations that those in the
local community may perceive as partisan. 28 For example, in Illinois, the mayor of
Broadview (the location of an ICE processing facility, where the Guard may be
ordered pursuant to the orders challenged in this case) has accused federal agents of
“making war on [her] community.” 29 According to the mayor, federal agents have been
“endangering Broadview neighbors, police officers and firefighters with their
‘relentless’ use of tear gas, pepper spray and rubber bullets against protesters[.]” 30
Even the perception that the Guard is being deployed into an environment in which
it is associated with endangerment of the communities it is sworn to protect risks the
Guard’s ability to effectively deploy in these same neighborhoods in future natural
disasters, pandemics, or other crises.
Another risk is that deploying the Guard for these efforts diverts them from
their primary mission. As noted above, active troops who are not protecting our
national security overseas are providing critical support to local communities. For
instance, when the Administration federalized and deployed members of the
California Guard in the Los Angeles area, they were diverted from wildfire protection,
28 Christopher Purdy, Opinion: What we lose by distorting the mission of the National Guard,
ANCHORAGE DAILY NEWS (Sept. 5, 2025), https://www.adn.com/opinions/nationalopinions/2025/09/05/opinion-what-we-lose-by-distorting-the-mission-of-the-nationalguard/#:~:text=The%20National%20Guard%20has%20become,and%20letters%20to%20the
%20editor.
Kelly Bauer & Colin Boyle, ICE Is ‘Making War’ On Broadview — And It Must Stop,
CLUB
CHICAGO
(Sept.
26,
2025),
Suburban
Mayor
Says,
BLOCK
https://blockclubchicago.org/2025/09/26/ice-is-making-war-on-broadview-and-it-must-stopsuburban-mayor-says/.
29
30 Id.
12
leaving the specialized fire protection unit at 40% of its normal strength during peak
wildfire season. 31 Similarly, as part of the D.C. deployment, South Carolina sent
Guardsmen out of state during hurricane season. Discussing this decision, the
governor stated that “should a hurricane or natural disaster threaten our state, these
men and women can and will be immediately recalled home to respond.” 32 But the
governor’s statement elides the likely operational difficulties of recalling deployed
troops and diverting them to a disaster zone, not to mention the risk of burnout
among those immediately recalled from one mission to another. Ultimately, in any
state, the diversion of Guard personnel during critical times risks degrading capacity
and preparedness to protect local populations during emergencies.
Finally, the proliferation of domestic deployments for missions outside of core
duties threatens the health of the military itself in several respects. First, it threatens
long-term readiness. Non-emergency deployments – especially lengthy or back-toback deployments – reduce combat preparedness by cutting into training time and
contributing to fatigue and burnout. As one former Army National Guard member
noted, “For three decades, Guardsmen have rotated through seemingly never-ending
deployments to Kosovo, Iraq, Afghanistan, Syria, Ukraine, and the Horn of Africa.
31 Andre de Channes, National Guard Diversion to Los Angeles Weakens California's Wildfire
COUNTY
PUBLIC
BROADCASTING
(July
7,
Defenses,
MENDOCINO
https://www.kzyx.org/2025-07-07/national-guard-diversion-to-los-angeles-weakenscalifornias-wildfire-defenses.
2025),
32 Gov. Henry McMaster Authorizes Deployment of National Guard to Washington, D.C., S.C.
OFFICE OF THE GOVERNOR (Aug. 16, 2025), https://governor.sc.gov/news/2025-08/gov-henrymcmaster-authorizes-deployment-national-guard-washington-dc.
13
Adding domestic-policing duties to the list of responsibilities degrades the Guard’s
readiness for missions that only the armed forces can perform.” 33
Second, excessive or inappropriate deployments can degrade morale and
exacerbate retention and recruitment challenges within the Guard. For example, a
Guard recruiter from a state that deployed troops to D.C. reportedly stated that the
D.C. mission “has deterred potential recruits and pushed already disillusioned
soldiers to their breaking points.” 34 Regarding the D.C. deployment, a National
Guard Public Affairs document highlighted “[m]entions of [f]atigue, confusion, and
demoralization” among the troops deployed there, citing concerns that they are “just
gardening,” have an “unclear mission,” and are driving a “wedge between citizens and
the military.” 35 Across the Guard, members have civilian lives – many have families,
civilian jobs – that they put on hold when deployed. While all Guard members expect
this sacrifice for their service, the toll can be exacerbated by frequent, months-long
absences on politically controversial missions, especially those for which the need for
their service may be in question. For instance, the Adjutant General of the Illinois
National Guard has stated: “There is no public safety need or other emergency
requiring the National Guard ***.” 36 Morale is further at risk as the members of the
33 Purdy, supra note 28.
Schuyler Mitchell, The National Guard Soldier Pissed About Trump’s DC Takeover,
MOTHER JONES (Sept. 3, 2025), https://www.motherjones.com/politics/2025/09/nationalguard-morale-dc-takeover-interview-soldiers-pissed-angry/.
34
35 Alex Horton, National Guard documents show public ‘fear,’ veterans’ ‘shame’ over D.C.
presence, WASH. POST (Sept. 10, 2025),
security/2025/09/10/national-guard-trump-dc/.
https://www.washingtonpost.com/national-
36 Complaint ¶ 129, Ill. v. Trump, No. 1:25-cv-12174 (N.D. Ill. Oct. 6, 2025), ECF No. 1.
14
Guard now being deployed “are not being paid during the government shutdown,
creating financial hardships for their families.” 37
III.
National Guard Personnel Are Not Trained to Operate in the
Context of Domestic Law Enforcement
Military missions and law enforcement missions are distinct undertakings
requiring different skill sets, training, and rules. “While an LEO [law enforcement
officer] is obliged to begin with an attempt at a constitutional arrest and escalate to
force as necessary, a combatant may strike an enemy first and resort to lesser
measures, like arrest, as the situation requires.” 38 Consistent with these distinct
roles, Guard personnel typically receive limited instruction and training on how to
handle civil disturbances. This minimal training pales in comparison to the in-depth
and ongoing education provided to civilian law enforcement officers. Domestic law
enforcement—particularly in emotionally charged situations involving civil unrest—
requires a specific skill set for which law enforcement officers train extensively and
continually,
including
training
in
de-escalation
and
respecting
civilians’
constitutional rights. As the federal court in Oregon concluded, military personnel
lack that training. Opinion at 5, supra note 13 (“Members of the National Guard
generally do not receive training to perform local law enforcement tasks, such as
37 Mark Richardson, National Guard members supporting ICE operations working without
FOX
(Oct.
3,
2025),
pay
during
government
shutdown,
LIVENOW
https://www.livenowfox.com/news/national-guard-members-work-without-pay-governmentshutdown.
38 Joseph Hope, GOOD TOOL, WRONG TASK: ARMED FORCES IN LAW ENFORCEMENT
ROOM
(July
17,
OPERATIONS,
WAR
https://warroom.armywarcollege.edu/articles/armed-forces-in-law-enforcement/.
15
2018),
learning de-escalation techniques, the use of non-lethal force, or how to properly
conduct criminal investigations.”). See also Bissonette v. Haig, 776 F.2d 1384, 1387
(8th Cir. 1985) (“[M]ilitary enforcement of the civil law leaves the protection of vital
[constitutional] rights in the hands of persons who are not trained to uphold these
rights.”), aff’d on reh’g en banc, 800 F.2d 812 (8th Cir. 1986), aff’d, 485 U.S. 264
(1988); United States v. McArthur, 419 F. Supp. 186, 193–94 (D.N.D. 1975)
(“[M]ilitary personnel must be trained to operate under circumstances where the
protection of constitutional freedoms cannot receive the consideration needed in order
to assure their preservation. The posse comitatus statute is intended to meet that
danger.”), aff’d sub nom. United States v. Casper, 541 F.2d 1275 (8th Cir. 1976). Our
tradition of entrusting domestic law enforcement to local, state, and federal police
has allowed the military to remain focused on its core mission.
Amici are concerned that troops in this deployment tasked with activities
relating to law enforcement are not positioned for success, with potentially grave
risks of escalation or confusion given their lack of experience with domestic law
enforcement. See United States v. Red Feather, 392 F. Supp. 916, 925 (D.S.D. 1975)
(“Activities which constitute an active role in direct law enforcement are: arrest;
seizure of evidence; search of a person; search of a building; investigation of crime;
interviewing witnesses; pursuit of an escaped civilian prisoner; search of an area for
a suspect and other like activities.”). Indeed, few Guard members have had more than
cursory law enforcement training, inviting confusion and disagreement over what
constitutes appropriate conduct in contentious civilian situations and risking split-
16
second miscalculations. 39 Nonetheless, Secretary Hegseth signed an order
authorizing the Guard members deployed in D.C. to carry weapons. 40 As the
President has pledged to model other deployments on D.C., amici are concerned that
a similar order in Illinois could put both the troops and the public they are sworn to
protect at risk, as the weapons training received by the Guard is not applicable to
patrolling American streets in peacetime.
These differences could have deadly consequences. For example, in a joint
operation between the LAPD and Marines during the 1992 Los Angeles riots, a police
officer asked Marines to “cover me,” intending for the Marines to be prepared to fire
to protect him only if necessary. The Marines, however, understood the request in
military parlance and fired over one hundred rounds into a civilian’s house. 41 These
seemingly small details can be the difference between life and death, and underscore
the importance of maintaining a separation between military operations and
domestic law enforcement. Several weeks ago, a sixteen-ton National Guard armed
vehicle driving through downtown D.C. reportedly crashed into a car, hospitalizing
39 E.g., Greg Jaffe, Hegseth Authorizes Troops in D.C. to Carry Weapons, N.Y. TIMES (Aug.
22,
2025),
https://www.nytimes.com/2025/08/22/us/politics/national-guardweapons.html#:~:text=Mr.,Pentagon%20and%20the%20U.S.%20military.
40 Mosheh Gains & Daniel Arkin, Hegseth Authorizes National Guard Troops in D.C. to Carry
Weapons, NBC NEWS (Aug. 22, 2025), https://www.nbcnews.com/news/us-news/hegsethauthorizes-national-guard-troops-dc-carry-weapons-rcna226536.
Susan Rosegrant, The Flawed Emergency Response to the 1992 Los Angeles Riots (A),
KENNEDY SCH. OF GOV’T CASE PROGRAM (Sept. 1, 2000), https://case.hks.harvard.edu/theflawed-emergency-response-to-the-1992-los-angeles-riots-a/.
41
17
the civilian driver. 42 Public reporting from Illinois suggests that federal agents are
already employing Black Hawk helicopters, tear gas, and flash bang grenades in their
law enforcement operations. 43 Amici are concerned that the addition of the military
to such an environment would risk increasing tensions and the potential for the use
of deadly force.
IV.
To Avoid Politicization of the Military, Deploying Military
Personnel to Assist with Law Enforcement Should Be a Last Resort
A bedrock principle of American democracy is that our military is apolitical.
That is, the military should be used to accomplish military objectives and not to
advance any domestic political agenda. This principle is enshrined throughout U.S.
law and policy, and in the legislative and judicial history of the Posse Comitatus Act,
which Congress passed in 1878 to restore the traditional separation between the
federal military and civilian authorities in domestic affairs that had come undone in
the politically turbulent Reconstruction era. United States v. Allred, 867 F.2d 856,
870 (5th Cir. 1989) (explaining that the “legislative and judicial history of the Act ***
indicates that its purpose springs from an attempt to end the use of federal troops to
police state elections in ex-Confederate states”). Efforts to establish new governments
in ex-Confederate states were particularly contentious, with presidents receiving
more requests for military aid from governors in those years than all previous decades
42 Luke Garrett, One Civilian injured in crash with D.C. National Guard military vehicle,
NPR (Aug. 20, 2025), https://www.npr.org/2025/08/20/g-s1-83950/national-guard-dc-crash.
43 Helicopters, tear gas, blown doors: A look at recent scenes in Chicago, NBC CHICAGO (Oct.
6, 2025), https://www.nbcchicago.com/news/local/helicopters-tear-gas-blown-doors-a-look-atrecent-scenes-in-chicago/3834233/.
18
combined, and sometimes even receiving simultaneous requests from rival governors
from different parties with competing claims to power. Courts and military scholars
alike have recognized the American tradition and need to keep the military apolitical.
E.g., Greer v. Spock, 424 U.S. 828, 839 (1976) (upholding military regulation
prohibiting partisan political activity and recognizing the need for the military to be
“insulated from both the reality and the appearance of acting as a handmaiden for
partisan political causes or candidates”). As the Supreme Court has observed, a
“politically neutral military” is an “American constitutional tradition” and has been
“reflected in numerous laws and military regulations throughout our history.” Id.
Accordingly, military personnel are not permitted to engage in political
conduct while on duty or to use their military status to endorse candidates or political
causes. 44 Any attempts to circumvent these laws and the underlying principles for
political purposes detracts from the military’s focus on external threats and
jeopardizes the military’s public standing. For instance, while a president may
lawfully fire senior military officials without cause or explanation to replace them
with loyalists—including the Chairman of the Joint Chiefs of Staff, three of five
service chiefs, the heads of the National Security Agency and Defense Intelligence
Agency, and all three service Staff Judge Advocates—such politicization of the
military does not enhance national security. 45 The country relies on informed,
44 Directive 1344.10, Political Activities By Members of the Armed Forces, U.S. DEP’T OF DEF.,
at 3 (Feb. 19, 2008), https://www.fvap.gov/uploads/FVAP/Policies/doddirective134410.pdf.
45 Dave Barno & Nora Bensahel, Rough Seas Ahead: Steering the Military Profession, WAR
ON THE ROCKS (Mar. 4, 2025), https://warontherocks.com/2025/03/rough-seas-aheadsteering-the-military-profession/.
19
experienced leadership committed to providing professional military advice, rather
than maintaining presidential favor. Military leaders are duty-bound to provide
nonpartisan counsel “and, if required, include advice contrary to what politicians
want to hear or that goes against current policy. The information should include an
explanation of what the military operations will entail, the military objectives, the
number of personnel and equipment required for mission success, and the limitations
of such actions.” 46
One of the “core principles and best practices” of “healthy American civilmilitary relations” is that “[m]ilitary officers swear an oath to support and defend the
Constitution, not an oath of fealty to an individual or to an office.” 47 If an officer is
afraid to speak the truth fearing the consequences of not wholeheartedly embracing
a president’s preferred course of action—or has been installed because he or she is
known to be predisposed to defer to the president—then military and national
security decisions will not be based on a full understanding of the facts needed to keep
America safe. For instance, “if senior military leaders whose first loyalty was to the
person who appointed them were put to tests such as the 2020 election, the republic
could indeed be at risk.” 48 Amici fear such a risk may already be materializing.
46 Patrick Paterson, Civil-Military Relations: Guidelines in Politically Charged Societies, in
PARAMETERS
5,
7-8
(Mar.
3,
2022),
52
https://press.armywarcollege.edu/cgi/viewcontent.cgi?article=3126&context=parameters.
47 To Support and Defend: Principles of Civilian Control and Best Practices of Civil-Military
Relations, WAR ON THE ROCKS (Sept. 6, 2022) https://warontherocks.com/2022/09/to-supportand-defend-principles-of-civilian-control-and-best-practices-of-civil-military-relations/.
48 Dunford, Jr., et al., supra note 21.
20
During the recent California deployment, when Major General Sherman (commander
of the troops deployed to California) expressed concern about a risky plan for an
operation because of the likelihood of escalation, Border Patrol Chief Bovino accused
him of being insufficiently loyal. 49
Also critical to the military’s ability to carry out its core functions is retaining
the public’s respect and maintaining cohesion and unity within its ranks—regardless
of the political leanings of individual citizens or soldiers. Since Reconstruction, an
apolitical military has served administrations of both parties, maintaining continuity
of service and security as the White House changed parties back and forth. Even the
perception that the military welcomes only one political view can be damaging to
recruitment, as it cuts the pool of potential recruits in half; this is of special concern
to a military that relies on an all-volunteer force.
Caution is therefore necessary if the military is to be deployed domestically in
the context of a politically charged situation. It is essential that such deployments be
a last resort, especially in the context of constitutionally protected activities or
activities likely to be perceived as partisan intimidation tactics. For example, military
personnel were ordered to accompany federal agents on an operation in Los Angeles,
for the apparent purpose of demonstrating “a show of presence.” 50 According to the
troops’ own planning documents, they judged the risk of not conducting the operation
49 Newsom v. Trump, No. 25-CV-04870-CRB, 2025 WL 2501619, at *7 n.4 (N.D. Cal. Sept. 2,
2025).
50 Id. at *7.
21
as low and hypothetical, and the risks of conducting the operation as high.51
Nevertheless, the troops were ordered to proceed with the operation to achieve the
mission of displaying federal capacity to the civilian population. Reporting indicates
that similar missions may be taking place already in Chicago that, if service members
are deployed alongside federal agents on these missions, could be perceived as
entanglement with a partisan undertaking. 52 Amici are concerned that service
members deployed on these and similar missions – for instance, Border Patrol Chief
Bovino’s fleet of boats on the Chicago River, with officers armed with semi-automatic
rifles 53, or the use of tear gas on unarmed reporters and protesters 54 – could embroil
the military in politically charged situations and risk the trust of all Americans in
the neutrality of the U.S. military.
In line with the need to avoid politicizing the military, federal deployments on
U.S. soil have historically been rare—reserved for the most serious situations and
only with clear legal justification. 55 Prior to the recent deployment in California that
51 Id.
52 Id. at *24.
53 Mohammad Samra, et al., Border Patrol spotted with guns on Chicago River in Trump's
SUN-TIMES
(Sept.
26,
latest
deportation
push,
CHICAGO
https://chicago.suntimes.com/immigration/2025/09/25/border-patrol-chicago-riverimmigration-enforcement-greg-bovino-deportation.
2025),
Siri Chilukuri, Body slamming, teargas and pepper balls: viral videos show Ice using
extreme force in Chicago, THE GUARDIAN (Oct. 4, 2025), https://www.theguardian.com/usnews/2025/oct/04/ice-chicago-extreme-force-protestersjournalists#:~:text=Local%20journalists%20have%20been%20detained,Chicago%20for%20o
ver%2015%20years.
54
55 Cf. Greer, 424 U.S. at 845 (Powell, J., concurring) (citation omitted) (“The overriding reason
for preserving this neutrality is … ‘the lesson of ancient and modern history that the major
22
a federal court found to have violated the Posse Comitatus Act, Newsom, 2025 WL
2501619, at *1, the last major domestic deployment of federal troops occurred during
the 1992 Los Angeles riots. In stark contrast to the present deployment in Illinois,
the 1992 deployment occurred at the request of the governor pursuant to the
Insurrection Act. Further, that deployment followed dozens of civilian fatalities, the
burning of entire blocks of homes and businesses, and widespread violence and
looting. Notwithstanding routine crime that is troubling wherever it occurs, the
situation here appears to be markedly different from Los Angeles in 1992. As of the
filing of this brief, there have been no credible reports of widespread unrest.
Deployments over the objections of state and local officials have been even
rarer, involving situations where such officials defied court orders or refused to
protect citizens exercising their constitutional rights, such as when the Alabama
National Guard was federalized in 1965 to protect those marching from Selma to
Montgomery for civil rights. These conditions have been absent in each of the recent
Guard deployments. Across the board, local officials in Los Angeles, Washington D.C.,
Memphis, Portland, and now Chicago have not requested Guard assistance. 56 To the
contrary, state and local officials in most of the affected communities – including
Illinois – have suggested that the deployment of troops would more likely escalate,
socially destabilizing influence in many European and South American countries has been a
highly politicized military.’”).
56 Holly Bailey & Molly Hennessy-Fiske, Trump’s use of Guard may have lasting impact on
POST
(Oct.
6,
2025),
cities
and
troops,
WASH.
https://www.washingtonpost.com/nation/2025/10/06/national-guard-deployment-chicagoportland-trump/. Memphis Mayor Paul Young recently remarked that in Memphis “[t]he
National Guard … seems to be the entity that brings the most fear and concern.” Id.
23
rather than lessen, the public safety risk. 57 Moreover, reports of the troops’ low
morale have surfaced, including discomfort with being drawn into domestic policing
and concerns that the public views the deployments as political, unnecessarily pitting
the Guard against the people they have sworn to protect. 58 Amici are concerned that
the morale of troops has been and will be undermined if their sacrifices are perceived
to be part of a political exercise rather than in response to a true emergency or
operational need. 59
The risks of politicization here are profound and not speculative, especially
where the President has, in his official capacity, overtly placed the military against
his professed political opponents. In a recent speech at Fort Bragg, President Trump
repeatedly denounced the Governor of California, while encouraging service
personnel to cheer as if at a political rally. 60 Speaking in advance of a military parade,
57 Rebecca Shabad, Mayor Muriel Bowser Says Trump’s Surge of Federal Law Enforcement
NEWS
(Aug.
27,
2025),
Has
Lowered
Crime
in
D.C.,
NBC
https://www.nbcnews.com/politics/politics-news/bowser-trump-police-takeover-lower-dccrime-national-guard-ice-rcna227582; Christine Fernando, Chicago and Illinois sue to stop
Trump’s Guard deployment plan after Portland ruling, ASSOCIATED PRESS (Oct. 6, 2025),
https://apnews.com/article/national-guard-portland-chicago-trumpa35549dc8d198b0270eaa95e5230ba94 (“Officials in Illinois and Oregon say military
intervention isn’t needed and that federal involvement is inflaming the situation.”).
58 “‘Go home,’ a crowd of people chanted two weeks ago to some troops standing outside the
Columbia Heights metro.” Isabelle Khurshudyan, et al., With no end in sight, National Guard
(Sept.
4,
2025),
troops
deployed
to
DC
grow
weary,
CNN POLITICS
https://www.cnn.com/2025/09/04/politics/national-guardsmen-deployed-to-dc-balance.
Ken
Klippenstein
(@kenklipp),
THREADS
(Sept.
2,
2025),
https://www.threads.com/@kenklipp/post/DOGuxh0igjL/video-amid-morale-problems-dcnational-guard-commander-issued-a-message-of-gratitude-t.
59
60 Konstantin
Toropin & Steve Beynon, Bragg Soldiers Who Cheered Trump’s Political
Attacks While in Uniform Were Checked for Allegiance, Appearance, MILITARY.COM (June 11,
2025), https://www.military.com/daily-news/2025/06/11/bragg-soldiers-who-cheered-trumpspolitical-attacks-while-uniform-were-checked-allegiance-appearance.html (noting that “fat
24
President Trump said, “For those people that want to protest, they’re going to be met
with very big force.” 61 While the President is entitled to criticize his political
opponents, involving the military in domestic political skirmishes risks harming the
military’s ability to recruit and retain servicemembers and garner broad public
support, therefore undermining its ability to achieve its core mission of protecting the
nation. It is precisely for this reason that the military should be kept out of domestic
law enforcement whenever possible.
CONCLUSION
Amici appreciate the Court’s consideration of these critical factors in
adjudicating the pending motion.
soldiers” and soldiers who disagree with the current administration were excluded from
attending).
61 Trump Warns Protests at Military Parade Will Be Met With Force, REUTERS (June 11,
2025),
https://www.reuters.com/world/us/trump-warns-protests-army-parade-will-be-metwith-very-big-force-2025-06-10.
25
Dated: October 20, 2025
Respectfully submitted,
Karen L. Dunn
Jeannie S. Rhee
John Paredes**
DUNN ISAACSON RHEE LLP
401 Ninth Street NW
Washington, DC 20004
Beau Tremitiere
PROTECT DEMOCRACY UNITED
300 Center Drive, Suite G-251
Superior, CO 80027
beau.tremitiere@protectdemocracy.org
(202) 579-4582
Margaret E. Truesdale
HUGHES SOCOL PIERS RESNICK & DYM,
LTD.
70 W. Madison Street, Suite 4000
Chicago, IL 60602
Jane Bentrott
PROTECT DEMOCRACY UNITED
2020 Pennsylvania Avenue NW, #163
Washington, DC 20006
**Admitted in NY only. Practice
supervised by D.C. Bar members.
*Counsel of Record
Counsel for Amici Curiae
26
APPENDIX
Admiral Steve Abbot, U.S. Navy (Ret.), graduated from the U.S. Naval
Academy in 1966, after which he was deployed to Vietnam and began a 34-year career
with the U.S. Navy. His final active-duty tour was as Deputy Commander-in-Chief,
U.S. European Command from 1998 to 2000. Following his retirement, Admiral
Abbot served as Deputy Homeland Security Advisor to President George W. Bush.
Admiral Thad Allen, U.S. Coast Guard (Ret.), retired in 2010 as the 23rd
Commandant of the U.S. Coast Guard. Admiral Allen led the federal responses to
Hurricanes Katrina and Rita and the Deepwater Horizon oil spill. He led Atlantic
Coast Guard forces in response to the 9/11 attacks and coordinated the Coast Guard
response to the 2010 Haitian earthquake.
Former Secretary of the Army Louis Caldera graduated from the U.S.
Military Academy at West Point and served in the Army on active duty from 1978 to
1983. He served in two Senate-confirmed positions in the Clinton Administration,
including Secretary of the Army, and as an Assistant to the President and Director
of the White House Military Office in the Obama Administration.
General George Casey, U.S. Army (Ret.), enjoyed a 41-year career in the
U.S. Army. He is an accomplished soldier and an authority on strategic leadership.
During his tenure as the Army Chief of Staff, he is widely credited with restoring
balance to a war-weary Army and leading the transformation to keep it relevant in
the 21st century. Prior to this, General Casey commanded the Multi-National Force
– Iraq, a coalition of more than 30 countries.
27
General Michael Hayden, U.S. Air Force (Ret.), entered active military
service in 1969. During his career, he rose to the rank of four-star general and served
as Director of the CIA and the NSA. General Hayden also served as Commander of
the Air Intelligence Agency and held senior staff positions at the Pentagon,
Headquarters U.S. European Command, and the National Security Council.
Admiral Samuel Jones Locklear, III, U.S. Navy (Ret.), graduated from
the U.S. Naval Academy in 1977. He served for 39 years and retired as commander
of U.S. Pacific Command. His prior commands include Commander, U.S. Naval
Forces Europe, U.S. Naval Forces Africa, and Allied Joint Force Command Naples;
Commander, U.S. 3rd Fleet; and Commander, Nimitz Strike Group.
General Craig McKinley, U.S. Air Force (Ret.), retired as a four-star
general in 2012 after 38 years of service. His last assignment was as the Chief of the
National Guard Bureau, where he also served as a member of the Joint Chiefs of
Staff. In this capacity, he was a military adviser to the President, the Secretary of
Defense, and the National Security Council, and he was the Department of Defense’s
official channel of communication to the Governors and to State Adjutants General
on all matters pertaining to the Guard.
Former Secretary of the Navy Sean O’Keefe began his public service
career in 1978 at the Department of Defense and as U.S. Senate staff until appointed
the Department of Defense Comptroller and Chief Finance Officer in 1989. President
George H.W. Bush later named him the 69th Secretary of the Navy. Secretary
28
O’Keefe also served in President George W. Bush’s Administration as Deputy
Director of OMB and the 10th Administrator of NASA.
Admiral Bill Owens, U.S. Navy (Ret.), retired in 1996 as the Vice Chairman
of the Joint Chiefs of Staff. He began his career as a nuclear submariner, spending a
total of 4,000 days aboard submarines, including duty in Vietnam. Admiral Owens
was a senior military assistant to two Secretaries of Defense and served as
commander of the U.S. 6th Fleet during Operation Desert Storm.
29
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.