"it can use regular troops, almost certainly without invoking 10 U.S.C. § 12406 or any other statute. (This is the "protective" power.) The power the Trump administration is seeking here is much broader-and would almost certainly mean that federalized National Guard troops would start accompanying ICE officers on immigration raids and other operations-even if they're not making the arrests themselves. That would be a ... dramatic ... escalation relative to where we are today."
"Third, and most importantly, it would allow the federal government to obtain emergency relief based upon either (1) a limitless view of what it means to be "unable to execute the laws of the United States"; or (2) an incredibly one-sided factual narrative that was expressly rejected by the district judge, and that the unanimous court of appeals panel refused to disturb."
Granting the application would allow deployment of troops onto Chicago and Broadview streets and effectively militarize immigration enforcement. The federal government could use regular troops to protect federal property without invoking 10 U.S.C. § 12406, but the requested authorities would be broader. Federalized National Guard personnel could begin accompanying ICE officers on raids and operations even when not making arrests, representing a dramatic escalation. The government could obtain emergency relief based on a limitless conception of being "unable to execute the laws of the United States" or on a one-sided factual narrative rejected by lower courts. Granting relief despite those findings would undermine fact-finding, separation of powers, federalism, and civil-liberty protections.
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