Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Applicants v. Illinois, et al.

Supreme Court briefOct 23, 2025

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Record No. 25A443

BEFORE THE

United States Supreme Court

DONALD J. TRUMP, PRESIDENT OF THE UNITED

STATES, ET AL., APPLICANTS

STATE OF ILLINOIS AND CITY OF

CHICAGO

On Appeal from the United States Court of Appeals for the

Seventh Circuit, Record 25-2798

BRIEF OF AMERICAN RIGHTS ALLIANCE AS

AMICUS CURIAE IN SUPPORT OF APPLICATION

FOR STAY

Peter Ticktin, Esquire

The Ticktin Law Group

270 SW Natura Avenue

Deerfield Beach, FL 33441

(561) 232-2222

pt@LegalBrains.com

October 28, 2025

TABLE OF CONTENTS

iii

TABLE OF AUTHORITIES

STATEMENT OF INTEREST OF AMICUS CURIAE

DISCLOSURES

ISSUES AND SUMMARY OF ARGUMENT

II.

STATEMENT OF THE CASE

III.

ARGUMENT

A. Standard Of Review

B. Governing Law For a Stay

C. Use of National Guard to Desegrate Schools in

Little Rock, Arkansas (Amicus Issue # 1)

D. What is it We are Deciding? (Amicus Issue # 2)

E. Protecting Federal Personnel, Property, Buildings,

And The Conduct Of Federal Functions Should Not

Count As The Type of “Law Enforcement” Intended

By The Posse Comitatus Act (Amicus Issue # 3)

F. State And Local Officials Are Openly Declaring

Their Rebellion Against Federal

Law (Amicus Issue # 4)

CONCLUSION

IV.

iii

TABLE OF AUTHORITIES

Cases

Cooper v. Aaron 1958, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, 3 L.Ed.2d 19 (1958). _________________________ 4, 5

Faubus v. United States, 254 F.2d 797 (8th Cir. 1958); _________________________________________________ 4

United States v. Arizona, 567 U.S. 387 (2012) ________________________________________________________ 2

United States v. Dixon, 901 F.3d 1322, 1338 (11th Cir. 2018) ____________________________________________ 3

United States v. Verrusio, 762 F.3d 1, 13 (D.C. Cir. 2014) _______________________________________________ 2

Winter v. Natural Resources Defense Council, Inc, 555 U.S. 7 (2008) _____________________________________ 3

Statutes

10 U.S. Code § 12406 __________________________________________________________________________ 13

10 U.S. Code § 252 ____________________________________________________________________________ 13

10 U.S. Code § 253 ____________________________________________________________________________ 12

10 U.S.C. § 253 ________________________________________________________________________________ 9

18 U.S.C. § 111 _______________________________________________________________________________ 11

18 U.S.C. § 1361 ______________________________________________________________________________ 11

18 U.S.C. 111(a) _____________________________________________________________________________ 9, 14

Insurrection Act _____________________________________________________________________________ 7, 12

IRS Code 501(c)(3 ______________________________________________________________________________ vi

Posse Comitatus Act, 18 U.S.C. 1385 __________________________________________________________ 1, 9, 11

Other Authorities

"10 reasons why America’s first constitution failed," National Constitution Center, November 17, 2022, ________ 2

“Memorandum Opinion For The Acting General Counsel Department Of The Army.” _______________________ 11

Jennifer K. Elsea (lead author), “The Posse Comitatus Act and Related Matters: The Use of the Military to Execute

Civilian Law,” Congressional Research Service, November 6, 2018 ___________________________________ 11

Treatises

Alissa C. Wetzel, “Beyond the Zone of Twilight: How Congress and the Court can Minimize the Dangers and

Maximize the Benefits of Executive Orders,” 42 Val. U. L. Rev. 385 (2007). ______________________________ 4

STATEMENT OF INTEREST OF AMICUS CURIAE

Proposed Amicus Curiae, the American Rights Alliance (ARA) is an IRS Code

501(c)(3) nonprofit, tax deductible organization. ARA is a coalition of legal

professionals, advocates, and strategists committed to defending the First

Amendment, protecting election integrity, and ensuring transparency in democratic

processes. ARA works to expose fraud, misconduct, and censorship while empowering

individuals to speak freely and without fear. We stand as a shield for those whose

voices are marginalized and as a force holding systems accountable to safeguard the

core principles of a free and just society.

The ARA, founded by attorney Evan Turk and represented herein by attorney

Peter Ticktin, comprises distinguished legal advocates dedicated to preserving

constitutional governance and protecting the separation of powers. Treniss Evans

assists ARA’s efforts to protect executive authority and end judicial interference.

Amicus is described at www.AmericanRightsAlliance.org and accessible at 303

Evernia Street, Suite 300, West Palm Beach, Florida 33401.

DISCLOSURE STATEMENT

Pursuant to Federal Rules of Appellate Procedure ("FRAP") Rule 29(a)(4)(E),

proposed Amicus is a non-profit public interest organization which does not own nor

is it owned by any other entity. It is governed by its Board of Directors. None of the

Court’s Justices or staff could have any economic relationship with this non-profit

entity, directly or through investment funds. 1

No counsel for a party authored this brief in whole or in part, and no counsel or party made a

monetary contribution intended to fund the preparation or submission of this brief. No person other

than Amicus Curiae, its members, or its counsel made a monetary contribution to its preparation

or submission.

ISSUES AND SUMMARY OF THE ARGUMENT

Amicus Curiae wishes to add a few hopefully illuminating points that may

provoke a more full review of this issue. Amicus Curiae makes four (4) arguments to

add to the Court’s review:

ISSUE # 1.

The constitutional standard applicable was set decades ago

including by President Eisenhower’s federalizing the National Guard in Little

Rock, Arkansas, at public schools, to enforce a decision of this U.S. Supreme Court

that segregation of public schools on the basis of race is unconstitutional.

Democrat Party State and local officials refused to allow Black students to enter

segregated public schools. The Arkansas National Guard was deployed by

Governor Faubus to block Black students from attending white-designated

schools. The President then federalized the Arkansas National Guard and sent

the 101st Airborne Division to escort those students past resisting State and local

officials and a mob of citizens who were in rebellion against this U.S. Supreme

Court. See, generally, Faubus v. United States, 254 F.2d 797 (8th Cir. 1958);

Cooper v. Aaron 1958, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, 3 L.Ed.2d 19 (1958).

The use of the National Guard did not turn on the issues asserted by the

Respondents such as foreign invasion nor the complete inability of the State and

local government to keep civil order, but on the unwillingness of officials to

comply with or tolerate the enforcement of Federal law. There was no indication

that Arkansas lacked the ability to keep order and enforce the law in any other

area of Arkansas life, but only in its refusal to desegregate. There were generally

(loud but) non-violent protests at the public schools yet also extreme threats of

intimidation against Black students intending to enter the public schools.

Arkansas’ National Guard were federalized and the 101 st Airborne Division sent

as a show of force to force Arkansas officials to ‘stand down’ from defying this

Supreme Court.

ISSUE # 2.

What is the “it” in question? District Courts are confusing

generalized, domestic law enforcement with the very limited role the National

Guard has been asked to assist with.

ISSUE # 3.

“Law enforcement” addressed in the Posse Comitatus Act, 18

U.S.C. § 1385, and related law, should be interpreted or correctly re-interpreted

to only mean generalized law enforcement. William Rehnquist then heading the

DOJ Office of Legal Counsel concluded in 1971 that protecting Federal property,

Federal personnel, and Federal functions were never intended to be covered by

these statutory restrictions. This Court should now adopt former U.S. Supreme

Court Justice William Rehnquist’s analysis even if

altering, or clarifying other precedent.

overturning, modifying,

ISSUE # 4.

Today, city and State Governments are openly declaring that they

will refuse to allow the enforcement of immigration law within their jurisdiction.

The Governor of Illinois Pritzker has publicly announced that he is seeking to

arrest Immigration and Customs Enforcement (ICE) agents of the U.S.

Department of Homeland Security now and in the next Presidential

Administration. Because Pritzker appears to be preparing a run for President,

this appears to be an electioneering campaign promise of what he will do.

II.

STATEMENT OF THE CASE

The Application for a Stay is before the Court through the Circuit Justice.

Violent mobs are attacking Federal law enforcement agents, Federal property and

the conduct of Federal agents because they intend to prevent the U.S. Government

from carrying out its duties and authority as this Court decreed in United States v.

Arizona, 567 U.S. 387 (2012).

Worse, however, State and local officials are openly boasting that they will

prevent the U.S. Government from enforcing Federal law, threaten Federal agents

with arrest, and in fact actively interfere with Federal officials.

Sympathetically, much of the violence, riots, and open opposition to Federal

law flows from a failure to understand the law. This Court’s clarification not only

as to a holding but also why the holding is called for has great potential in these

matters to de-escalate these controversies.

The United States of America had a national government under the Articles

of Confederation, which were rejected for several defects including a President

being too weak to move promptly and decisively to address national threats. "10

reasons why America’s first constitution failed," National Constitution Center,

November 17, 2022, https://constitutioncenter.org/blog/10-reasons-why-americasfirst-constitution-failed

III.

ARGUMENT

A. STANDARD OF REVIEW

In general, this Court reviews questions of law de novo. United States v.

Verrusio, 762 F.3d 1, 13 (D.C. Cir. 2014).

In addressing the District Court’s ruling, this Court reviews findings of fact for

clear error. United States v. Dixon, 901 F.3d 1322, 1338 (11th Cir. 2018).

As currently formulated and presented, this case involves almost entirely

questions of law. The facts are very important but are simply being ignored. It is not

that the facts are contested but that clear facts have gone missing from the

Respondent’s legal analysis.

Nevertheless, if the Court interprets this as a mixed question of fact and law….

The standard of review for a mixed question depends on "whether

answering it entails primarily legal or factual work." U.S. Bank Nat'l

Ass'n ex rel. CWCapital Asset Mgmt. LLC v. Vill. at Lakeridge, LLC ,

––– U.S. ––––, 138 S. Ct. 960, 967, 200 L.Ed.2d 218 (2018). We review

a mixed question de novo when it requires us to "expound on the law,

particularly by amplifying or elaborating on a broad legal standard."

Id. We review a mixed question for clear error when it requires us to

"marshal and weigh evidence, make credibility judgments, and

otherwise address ... ‘multifarious, fleeting, special, narrow facts that

utterly resist generalization.’ " Id. (quoting Pierce v. Underwood , 487

U.S. 552, 561–62, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) ).

Reynolds v. ServisFirst Bank (In re Stanford), 17 F.4th 116 (11th Cir. 2021)

B. GOVERNING LAW FOR A STAY

The formula for a stay requires:

(1)

A significant prejudice or burden to the requester if not granted.

(2)

A comparatively insignificant prejudice or burden upon the party

or parties affected by the requested injunction if it is granted.

(3)

On balance, the stay is in the public interest.

(4) The moving party has a substantial likelihood of prevailing on the

merits.

See, e.g., Winter v. Natural Resources Defense Council, Inc, 555 U.S. 7 (2008).

Here,

(1) Federal officials are almost certain to be injured or someone killed

if riots continue or property will be damaged. And Federal

immigration law may go unenforced as well.

(2) While Respondents are curious about the U.S. Government’s

authority, the only consequence foreseeable is that their cities will be

safer. Extreme scenarios they worry about will remain under the

Federal court’s jurisdiction and restraint as the cases progress.

(3) The cities will be safer. This Court retains jurisdiction against

extreme scenarios imagined by Respondents.

(4) Federal agents are being attacked roughly as the Court reads this

and Federal property damaged.

C. USE OF NATIONAL GUARD TO DESEGRATE SCHOOLS IN LITTLE

ROCK, ARKANSAS (Amicus Issue # 1)

The Arkansas National Guard was deployed by Governor Faubus to block Black

students from attending white-designated schools in Little Rock, Arkansas. The

President then authorized the military and federalized the National Guard from

other States to escort those students past resisting State and local officials and a mob

of citizens who were in rebellion against this U.S. Supreme Court. See, generally,

Faubus v. United States, 254 F.2d 797 (8th Cir. 1958); Cooper v. Aaron 1958, 358 U.S.

1, 78 S.Ct. 1401, 3 L.Ed.2d 5, 3 L.Ed.2d 19 (1958).

[I]n 1957, President Eisenhower

issued an executive order calling in the National Guard to facilitate

the peaceful integration of Little Rock Central High School. 82 Such

executive boldness, however, was rendered less necessary in the

1960s because the political makeup of Congress ensured that many

civil rights measures could be implemented by statute, rather than by

executive order.83 Yet, had it not been for executive orders, the

struggle for civil rights would have been slowed and segregation

would have been even more pervasive in the middle of the twentieth

century.84

Alissa C. Wetzel, “Beyond the Zone of Twilight: How Congress and the Court

can Minimize the Dangers and Maximize the Benefits of Executive Orders,”

42 Val. U. L. Rev. 385 (2007).

Available at: https://scholar.valpo.edu/vulr/vol42/iss1/

The use of the military did not turn on the issues asserted by the Respondents

here such as any foreign invasion nor the complete inability of the State and local

government to keep civil order, but on the unwillingness of officials to comply with or

tolerate the enforcement of Federal law.

In 1958, the U.S. Supreme Court presented a long history, on considering a delay:

As this case reaches us it raises questions of the highest importance to

the maintenance of our federal system of government. It necessarily

involves a claim by the Governor and Legislature of a State that there

is no duty on state officials to obey federal court orders resting on this

Court's considered interpretation of the United States Constitution.

Specifically it involves actions by the Governor and Legislature of

Arkansas upon the premise that they are not bound by our holding in

Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873.

That holding was that the Fourteenth Amendment forbids States to use

their governmental powers to bar children on racial grounds from

attending schools where there is state participation through any

arrangement, management, funds or property. We are urged to uphold

a suspension of the Little Rock School Board's plan to do away with

segregated public schools in Little Rock until state laws and efforts to

upset and nullify our holding in Brown v. Board of Education have been

further challenged and tested in the courts. We reject these contentions.

Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, 3 L.Ed.2d 19 (1958)

This is an appeal from an order of the District Court made September

20, 1957 * * * . The order enjoined the appellants, and others under

their control or in privity with them, from using the Arkansas National

Guard to prevent eligible Negro children from attending the Little

Rock Central High School, and otherwise obstructing or interfering

with the constitutional right of such children to attend the school.

***

On September 2, 1957, the appellants, Orval E. Faubus, Governor of

the State of Arkansas, and Sherman T. Clinger, Adjutant General of

the State, stationed units of the Arkansas National Guard, under the

command of Lt. Col. Marion E. Johnson, at the Little Rock Central

High School. The order of Governor Faubus to General Clinger was as

follows:

"You are directed to place off limits to white students those

schools for colored students and to place off limits to colored

students those schools heretofore operated and recently set up

for white students. This order will remain in effect until the

demobilization of the Guard or until further orders."...

Faubus v. United States, 254 F.2d 797 (8th Cir. 1958)

In response, after negotiations, President Eisenhower issued Executive Order

10730 on September 23, 1957:

***

NOW, THEREFORE, by virtue of the authority vested in me by the

Constitution and Statutes of the United States, including Chapter 15

of Title 10, particularly sections 332, 333 and 334 thereof, and section

3012 of Title 3 of the United States Code, It is hereby ordered as

follows:

SECTION 1. I hereby authorize and direct the Secretary of Defense to

order into the active military service of the United States as he may

deem appropriate to carry out the purposes of this Order, any or all of

the units of the National Guard of the United States and of the Air

National Guard of the United States within the State of Arkansas to

serve in the active military service of the United States for an

indefinite period and until relieved by appropriate orders.

SEC. 2. The Secretary of Defense is authorized and directed to take all

appropriate steps to enforce any orders of the United States District

Court for the Eastern District of Arkansas for the removal of

obstruction of justice in the State of Arkansas with respect to matters

relating to enrollment and attendance at public schools in the Little

Rock School District, Little Rock, Arkansas. In carrying out the

provisions of this section, the Secretary of Defense is authorized to use

the units, and members thereof, ordered into the active military

service of the United States pursuant to Section 1 of this Order.

SEC. 3. In furtherance of the enforcement of the aforementioned orders

of the United States District Court for the Eastern District of

Arkansas, the Secretary of Defense is authorized to use such of the

armed forces of the United States as he may deem necessary.

SEC. 4. The Secretary of Defense is authorized to delegate to the

Secretary of the Army or the Secretary of the Air Force, or both, any of

the authority conferred upon him by this Order.

Since recodified, approximately numbering 100 lesser section numbers.

DWIGHT D. EISENHOWER

THE WHITE HOUSE,

September 24, 19573

Nothing in these events is consistent with the District Court’s decision below

or the arguments of Respondents.

The National Guard was similarly mobilized at the University of Mississippi,

University of Alabama, and competing street protests at Selma, Alabama. 4 These all

involved State and local officials, unwilling to uphold the law, though perfectly

capable of doing so. They also involved the use of the National Guard over the

objections of the States’ Governors. See “Federalizations of the Guard for Domestic

Missions through 2025,” at the website of the National Guard,

https://www.nationalguard.mil/Portals/31/Documents/FEDERALIZATION-OFGUARD-UP-TO-2025.pdf

Also the National Guard was federalized and called up in 1967, to patrol the

so-called Detroit Riots and in 1968 the multi-city Riots upon the assassination of

Martin Luther King. (Executive Order 11403.) These were with the consent of the

Governors. Id.

In 1970, the New York Postal Strike resulted in Executive Order 11519 calling

up 28,100 total Active and Reserve National Guard. In New York City, “more than

1,000 troops delivered mail in NYC’s financial district; the rest sorted mail and kept

strikers from interfering with delivery.” Id.

In 1989, in the Virgin Islands, a hurricane resulted not only in devastation but

“violence and looting in the wake of Hurricane Hugo. Virgin Islands reported 954

Army National Guard and 29 Air National Guard personnel mobilized for Fiscal Year

1989.” Id.

In 1992, upon the acquittal of police charged with beating Rodney King, riots

boiled over in Los Angeles. “[A]fter two days, President Bush invoked the

Insurrection Act and called the Guard into federal service: Executive Order 12804,

https://www.archives.gov/milestone-documents/executive-order-10730

See, also, Bill Chappell, “What happened when Lyndon Johnson federalized the National Guard,”

National Public Radio,

https://www.npr.org/2025/06/09/nx-s1-5428352/johnson-national-guard-history-eisenhower-alabamacivil-rights-trump-newsom

May 1, 1992.” 11,398 Guardsmen patrolled Los Angeles to keep the peace. The

Governor consented. Id.

See, also, Michael R. Rouland and Christian E. Fearer, “Calling Forth the Military:

A Brief History of the Insurrection Act,” Joint Force Quarterly 99, National

Defense University Press, accessible at

https://ndupress.ndu.edu/Media/News/News-Article-View/Article/2421411/callingforth-the-military-a-brief-history-of-the-insurrection-act/

WHAT IS “IT” WE ARE DECIDING?

(Concerning Amicus Issue # 2)

A major problem with understanding this and related cases is confusion about

what exactly this Court is being asked to allow or to prohibit. This distinction is

mentioned by the principal parties but Amicus feels it would benefit from emphasis.

Here, the President limited the call up of the National Guard to protection of

Federal personnel, Federal buildings and property including vehicles, and intentional

disruption of Federal enforcement of Federal laws. He did not call up the Guard to

be a roving police force generically enforcing random State-law crimes as a whole.

More than that, however, the President has apparently not even tasked the

Guard with the full range of that function. From reports, it appears that the Guard

is being asked only to protect other law enforcement officers, Federal or State, who

are actually doing the law enforcement themselves. It appears that the Guard has

not even been authorized to make arrests. Of course, line officers require significant

support. Freeing up actual law enforcement officers to do their job is significant.

No doubt any Executive Branch Administration would prefer to go to all the

trouble of litigation while asserting the maximum limits of its authority. The

Respondents fear expansion, “mission creep,” and over-reach. Yet this Court should

generally limit its decision to what is at issue.

If the issues stretch beyond what this Court accepts there will be opportunity

and in fact continued jurisdiction to deal with that if it ever arises, while this case

proceeds.

The power of arrest itself may cover various scenarios. Identifying for which

of these the Guard will be empowered to make arrests might be a benefit. In the

current fact pattern, (a) ICE is enforcing immigration law by court-issued deportation

orders, (b) ICE is detaining illegal aliens not yet adjudicated but believed to be subject

to deportation5, (c) any Federal officer is duty-bound to arrest those who in their

presence commit Federal crimes such as 18 U.S.C. § 111 forcibly assaulting, resisting,

opposing, impeding, intimidating or interfering with Federal officers “while engaged

in or on account of the performance of official duties,” (emphasis added) and 10 U.S.C.

§ 253, even if the offender is a bona fide U.S. citizen, (d) officers may unexpectedly

encounter others for whom there is reasonable suspicion of illegal status but for whom

investigative detention would be more fleeting.

Crashing vehicles into ICE or other Federal vehicles is capable of being

attempted vehicular manslaughter. Amplified by the risks of driving any vehicle,

hurling rocks or the like at a Federal vehicle under way has the potential to be

attempted manslaughter. Arrests might be normal practice in any context.

PROTECTING FEDERAL PERSONNEL, PROPERTY, BUILDINGS, AND

THE CONDUCT OF FEDERAL FUNCTIONS SHOULD NOT COUNT AS

THE TYPE OF “LAW ENFORCEMENT” INTENDED BY THE POSSE

COMITATUS ACT (Concerning Amicus Issue # 3)

By William Rehnquist on April 29, 1971, then Assistant Attorney General,

the Office of Legal Counsel of the U.S. Department of Justice provided public advice

to the DOJ in “Memorandum Opinion For The Acting General Counsel Department

Of The Army.”6 Rehnquist analyzed that:

In light of the announced purpose of the “Mayday Movement” to halt

the functioning of the federal government by preventing federal

employees from reaching their agencies, the question has arisen as to

whether there is authority to use federal troops to insure access by

federal employees to their agencies. The question involves the

relationship between the inherent authority of the President to use

troops to protect federal functions and the Posse Comitatus Act, 18

U.S.C. § 1385, which prohibits the use of troops for law enforcement

purposes “except in cases and under circumstances expressly

authorized by the Constitution or Act of Congress.”

It is the opinion of this Office that the Posse Comitatus Act does not

Federal officers have access to all databases necessary to determine before venturing out of

their offices who is a U.S. citizen, who is a lawful permanent resident, who has a valid visa, and

criminal records. The U.S. Government is the creator of this information as well as its custodian.

Presumably to comply with due process, officers will have consulted these databases before leaving

their desks.

https://www.justice.gov/file/147726/dl

prevent the use of troops to protect the functioning of the government

by assuring the availability of federal employees to carry out their

assigned duties and that troops may therefore be utilized to prevent

traffic obstructions designed to prevent the access of employees to their

agencies.

In a series of memoranda, this Office has taken the position that the

Posse Comitatus Act applies to the use of troops to perform essentially

law enforcement duties and does not impair the President’s inherent

authority to use troops for the protection of federal property and

federal functions.1

The Congressional Research Service, which we should recall is specifically a

research service for Congress, explains:

Presidents Kennedy and Johnson followed the Little Rock precedent

to deal with resistance to court-ordered desegregation in a number of

Southern states. In 1962, after the governor of Mississippi attempted

to prevent black student James H. Meredith from registering at the

University of Mississippi at Oxford, President Kennedy sought to

enforce the court order with federal marshals. 314 When marshals met

with resistance from state forces and later a riotous mob, President

Kennedy federalized the Mississippi National Guard and ordered

active Army troops already gathered in the area to take action. 315 The

President's proclamation to disperse named the governor and other

state officials as forming the unlawful assemblies obstructing the

enforcement of the court order, citing as authority both sections 332

and 333.316 President Kennedy followed a similar course of action to

confront state resistance to court ordered desegregation in Alabama

twice in 1963.317 President Johnson cited the same authority in 1965

to deploy troops, both regular Army and federalized National Guard,

to Alabama to protect civil rights marchers as they made their way

from Selma, AL, to Montgomery.318

Support to Law Enforcement

In 1981, Congress enacted general law enforcement exceptions 319 to

the Posse Comitatus Act prohibitions in order to resolve questions

raised by the cases that grew out of the events at Wounded Knee. 320

The take-over and events which occurred during the siege led to four

cases321 involving a series of federal criminal charges including

obstructing a law enforcement officer in the lawful performance of his

duties during the course of a civil disturbance.322 Military assistance

provided federal authorities at Wounded Knee323 undermined the

prospects of a successful prosecution for obstructing law enforcement

officers by casting doubt on whether they were performing their

duties lawfully, an element necessary for conviction.

The 1981 legislation contains explicit grants of authority for military

assistance to the police—federal, state, and local—particularly in the

form of information and equipment, along with restrictions on the use

of that authority.324 These exceptions are found in Chapter 15 of Title

10, U.S. Code, Military Support to Civilian Law Enforcement

Agencies (§§271-284).

***

When the Posse Comitatus Act Does Not Apply

In addition to any express constitutional exceptions, the use of the

Armed Forces to execute federal law does not violate the Posse

Comitatus Act when (1) an act of Congress expressly authorizes use

of part of the Army or Air Force as a posse comitatus or otherwise to

execute the law; (2) the activity in question does not involve use of

part of the Armed Forces covered by the proscription; or (3) the

activity in question does not constitute "execution of the law."

Jennifer K. Elsea (lead author), “The Posse Comitatus Act and Related Matters:

The Use of the Military to Execute Civilian Law,” Congressional Research Service,

November 6, 2018, accessible at:

https://www.congress.gov/crs-product/R42659#_Toc529450206

Here, Federal functions are being directly blocked by State and local officials

and by violent mobs in violation of the Civil Rights Enforcement Act of 1871, Federal

officials being assaulted in violation of 18 U.S.C. § 111 and Federal property attacked

and damaged in violation of 18 U.S.C. § 1361.

Protection of Federal personnel, assets, and functions is a specialized function,

not generalized law enforcement. This is not the “law enforcement” that the Posse

Comitatus Act and similar statutes were intended to address, or at least this Court

should correct any impression that it is.

STATE AND LOCAL OFFICIALS ARE OPENLY DECLARING THEIR

REBELLION AGAINST FEDERAL LAW (Amicus Issue # 4)

The District Courts have consistently erred. The authority of the President to

over-ride the Posse Comitatus Act or any restrictions on the use of the U.S. Military

including the National Guard can arise when

(1) State and/or local officials are unwilling to enforce the law to

keep civil order,

(2) the military / National Guard is not engaging in law

enforcement but protection of Federal personnel and assets

and Federal functions

(3) State and/or local officials are unable to enforce the law to keep

civil order.

The District Courts have erred by considering only when

State and local authorities cannot control the situation.

But that is not the law.

When State and local authorities refuse to or will not enforce the law, this is

insurrection, whether writ large or small. And this is far more dangerous and

insidious.

The Insurrection Act provides that:

The President, by using the militia or the armed forces, or both, or by

any other means, shall take such measures as he considers necessary

to suppress, in a State, any insurrection, domestic violence, unlawful

combination, or conspiracy, if it—

(1) so hinders the execution of the laws of that State, and of the

United States within the State, that any part or class of its

people is deprived of a right, privilege, immunity, or protection

named in the Constitution and secured by law, and the constituted

authorities of that State are unable, fail, or refuse to protect

that right, privilege, or immunity, or to give that protection; or

(2) opposes or obstructs the execution of the laws of the

United States or impedes the course of justice under those

laws.

In any situation covered by clause (1), the State shall be considered to

have denied the equal protection of the laws secured by the

Constitution.

10 U.S. Code § 253 (emphases added). And:

Whenever the President considers that unlawful obstructions,

combinations, or assemblages, or rebellion against the authority

of the United States, make it impracticable to enforce the laws of

the United States in any State by the ordinary course of judicial

proceedings, he may call into Federal service such of the militia of

any State, and use such of the armed forces, as he considers

necessary to enforce those laws or to suppress the rebellion.

10 U.S. Code § 252 (emphases added).

Notice that rebellion can be against the authority of the United States.

Likewise, 10 U.S. Code § 12406 – “National Guard in Federal service” provides:

Whenever—

***

(2)there is a rebellion or danger of a rebellion against the authority

of the Government of the United States; or

(3)the President is unable with the regular forces to execute the laws

of the United States;

the President may call into Federal service members and units of the

National Guard of any State in such numbers as he considers

necessary to repel the invasion, suppress the rebellion, or execute

those laws. * * *

Id. (emphasis added)

Unfortunately, the risk of a second civil war is of increasing concern. 7

Opponents like Respondents are in conflict with the immigration laws enacted by

Congress. They are in open, undisguised rebellion against the Supremacy Clause of

the U.S. Constitution because they do not want Federal law enforced. The context of

these fighting words meant to inflame the Democrat Party base who do not

understand the law makes it clear that any deportations of illegal aliens are

Former CNN host Don Lemon is telling ethnic minorities to buy a gun specifically against

ICE agents. Ben Kew, “Don Lemon Says Minorities Should Purchase Firearms to Protect

Themselves From ICE Agents,” The Gateway Pundit, October 17, 2025, accessible:

https://www.thegatewaypundit.com/2025/10/don-lemon-says-minorities-should-purchase-firearmsito/

rejected as “breaking the law.” 8

The Governor of Illinois, a Respondent here, (along with Governor Gavin

Newsom and the Mayor of Los Angeles) is leading a nascent civil war against the

authority of the United States, as that authority was decreed in United States v.

Arizona in 2012 and under the Supremacy Clause. Pritzker is threatening and

intimidating ICE agents – a direct violation of 18 U.S.C. 111 -- to stop Federal officials

from enforcing Federal law.

"The tables will turn one day," Prtizker said. "These people should

recognize that maybe they’re not gonna get prosecuted today,

although we’re looking at doing that, but they may get prosecuted

after the Trump administration because the statute of

limitations would not have run out.."

Pritzker insinuates that the Illinois Attorney General and local

state's attorneys might be investigating some of DHS' purported

wrongdoing.

Paris Schultz, “'The tables will turn one day': Pritzker blasts ICE, CBP in Chicago,”

Fox News Local Channel 32 online, accessible at:

https://www.fox32chicago.com/news/the-tables-will-turn-one-day-pritzker-blasts-icecbp-chicago

“The remarks come just a few days after the governor floated the

idea of prosecuting ICE agents after clashes between them and

local protesters, while Trump has suggested he would seek Pritzker's

imprisonment for standing in the way of federal immigrant

enforcement.”

Dan Gooding and Amanda Castro, “JB Pritzker Compares Trump’s ICE

Crackdown to Nazi Germany,” Newsweek, October 15, 2025, (emphases

added), accessible at: https://www.newsweek.com/jb-pritzker-donald-trumpice-immigration-nazi-germany-10883758

“Pritzker and the Trump administration have been at loggerheads for

Among other things, these complaints fail to consider that when U.S. citizens throw rocks at

law enforcement or cars or physically batter Federal officers, they will be arrested, U.S. citizen or

not. Under the extensive jurisprudence of 18 U.S.C. 111, merely blocking the movement of Federal

officers or preventing them for doing their duty are a couple of the valid causes for arrest, regardless

of citizenship status.

months now, over the White House's efforts to crack down on illegal

immigration and detain immigrants accused of committing crimes.

The Democrat has been one of the leading voices against the tactics

used by Trump and the Department of Homeland Security (DHS),

especially as federal agents swarmed into Chicago as part of targeted

enforcement efforts.”

Id. (emphases added)

Likewise,

An alarming situation unfolded in Chicago on Saturday when police

officers were reportedly ordered to “stand down” and not assist a

federal Immigration and Customs Enforcement (ICE) agent who was

surrounded and in distress in the city’s Brighton Park neighborhood.

The shocking directive, allegedly issued by a Chicago Police

Department (CPD) commander, has sparked widespread outrage

among law enforcement advocates and legal experts, who say the

order may violate both state and federal laws.

“Chicago Police Ordered to ‘Stand Down’ as ICE Agent Surrounded – Legal

Experts Warn of Criminal Liability,” Illinois Review, October 5, 2025,

https://www.illinoisreview.com/illinoisreview/2025/10/chicago-police-orderedto-stand-down-as-ice-agent-surrounded-legal-experts-warn-of-criminalliability.html

News indicates that police did respond, but their Chicago leadership ordered

them not to help ICE. At the same time:

There is credible intelligence that members of Mexican drug cartels

have offered a "tiered" bounty system for hits against Immigration

and Customs Enforcement (ICE) and U.S. Customs and Border

Protection (CBP) officers, according to the Department of Homeland

Security (DHS).

***

Drug cartels have "disseminated a structured bounty program to

incentivize violence against federal personnel," according to a press

release from DHS. The federal agency alleges cartels are offering

$2,000 for intelligence gathering and doxing of agents, $5,000–

$10,000 for kidnapping or non-lethal assaults on standard ICE/CBP

officers and up to $50,000 for the assassination of high-ranking

officials.

Luke Barr, “Cartels issuing bounties up to $50,000 for hits on ICE, CBP agents:

DHS,” ABC News Online, October 14, 2025,

https://abcnews.go.com/US/cartels-issuing-bounties-50000-hits-ice-cbpagents/story?id=126521867

This is not only an invasion by foreign drug cartels but there is no way for

Federal agents to know in a riot who is acting for a foreign power or foreign drug

cartel.

In related cases, California Governor Gavin Newsom and Los Angeles Mayor

Karen Bass have proclaimed their refusal to allow the enforcement of any Federal

law in their jurisdictions.

From Ventura to Downey, mayors from 30 Southern California cities

stood together Wednesday to call for the end of immigration

raids as they pleaded with the Trump administration to stop

spreading fear.

“30 mayors in Southern California call for end of ICE raids in solidarity with

LA,” NBC News Channel 4, June 11, 2025, (emphasis added),

https://www.nbclosangeles.com/news/local/30-mayors-in-southern-californiacalled-for-end-of-ice-raids-in-solidarity-with-la/3721586/

Applying their criticisms, no immigration enforcement would be

possible. The very essence of deportation and immigration law enforcement

is rejected by State and local officials. Deportation in and of itself is rejected

and condemned as “raids” that are “cruel” and chaotic.

After federal agents carried out immigration operations across the

city of Los Angeles Friday, LA Mayor Karen Bass and other city

leaders as well as Governor Gavin Newsom expressed their outrage

at the federal government, calling the raids cruel and chaotic.

Helen Jeong, “‘Cruel and chaotic.' LA Mayor Bass, Gov. Newsom slam ICE raids in

downtown LA,” NBC News Local Channel 4, June 6, 2025,

https://www.nbclosangeles.com/news/local/cruel-and-chaotic-la-mayor-bass-govnewsom-slam-ice-raids-in-downtown-la/3717684/

The opposition is to whether Federal law will be enforced at all:

Newsom has persisted in calling the raids "inhumane," attributing

the attacks [by rioters on Federal agents] to federal policies rather

than law enforcement.

Global Desk, “Gavin Newsom’s reply to ICE agents being assaulted in California goes

viral,” Economic Times of India, July 11, 2025, (explanation in brackets and emphasis

added).

https://economictimes.indiatimes.com/news/international/us/gavin-newsoms-replyto-ice-agents-being-assaulted-in-california-goes-viral-heres-whathappened/articleshow/122390740.cms

“Come after me. Arrest me,” a visibly angry Governor Gavin Newsom

challenged the Trump administration late today.

Newsom was responding to comments made by Trump border czar

Tom Homan who, when asked if his threat to arrest anybody who got

in the way of immigration officials included the California governor

and/or Los Angeles Mayor Karen Bass, replied, “I’ll say it about

anybody. You cross that line, it’s a felony to knowingly harbor and

conceal an illegal alien. It’s a felony to impede law enforcement doing

their job.”

Newsom challenged Homan today in an interview with MSNBC,

“Why doesn’t he do that? He’s a tough guy. He knows where to find

me.” The governor was upset by what he said was ICE detaining “four

year old girls who are just trying to get an education. Lay your

hands off these people who are just trying to live their lives.”

Newsom then moved back to Homan and the Trump Administration.

“What the hell are they doing? These guys need to grow up. They

need to stop. And we need to push back, so Tom: Arrest me. Let’s

go.”

Dominic Patten and Tom Tapp, “Angry Newsom Challenges Trump Administration

To “Arrest Me” As Conflict Grows In L.A.,” Deadline, June 8, 2025, (emphases

added), https://deadline.com/2025/06/newsom-troops-lapd-alert-trump-ice-raids1236427176/

The intent of Governor Gavin Newsom is clearly to block ICE from doing its

job:

The Department of Homeland Security (DHS) vehemently condemns

California Governor Gavin Newsom for signing the “No Secret Police

Act,” which further demonizes law enforcement * * *

This stunt comes as our ICE officers are facing a more than

1000% increase in assaults against them, including vehicles

being used as weapons towards them, and doxing campaigns

targeting federal officers and their families. * * *

Press Release, U.S. Department of Homeland Security, “Despite 1,000% Increase in

Assaults on ICE Officers, Governor Newsom Signs Unconstitutional Law to Ban Law

Enforcement Officer Protections,” September 22, 2025 (emphasized added),

https://www.dhs.gov/news/2025/09/22/despite-1000-increase-assaults-ice-officersgovernor-newsom-signs-unconstitutional

At least two individuals were killed with a third injured after a

gunman opened fire on an ICE transportation vehicle in Dallas early

Wednesday morning. Investigators announced that rounds found

near the shooter — who died of a self-inflicted gunshot wound — were

inscribed with anti-ICE messaging. Notably, there was a bomb threat

at the same facility last month, according to DHS Assistant Secretary

for Public Affairs Tricia McLaughlin.

Briana Lyman, “After Gavin Newsom Targeted ICE On Colbert, Shooter Tries To

Murder ICE Agents In Dallas,” The Federalist, September 24, 2025,

https://thefederalist.com/2025/09/24/after-gavin-newsom-targeted-ice-on-colbertshooter-tries-to-murder-ice-agents-in-dallas/

IV.

CONCLUSION

For these constitutional and practical reasons, amicus respectfully urges this

Court to grant the Application for Stay and for a Writ of Certiorari at the appropriate

time and carefully and meticulously clarify this area of the law for the benefit of not

only the parties but the general public that appears to be inflamed to a disturbing

extent by misunderstandings of the U.S. Constitution, precedents, governing law, and

the nature of our Tri-partite Federal government.