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.

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