Who Should Execute the Law in Illinois?

The topic of discussion for this Constitution Monday concerns the decision made by President Donald Trump to send National Guard members into Chicago to help ICE and other federal officers to enforce federal laws and the temporary restraining order  by the U.S. Supreme Court.

I happened to find a podcast by Victor Davis Hanson on this topic, and his words helped me to understand the situation better. According to the transcript, he began by saying that explaining that he has been studying for many years how republics test their constitutions. “Not always in grand crisis, but in these tense half-legal, half-political episodes where everyone insists [that] they are defending the system and yet the system itself is what’s on trial.” He said that this was exactly what the Supreme Court did when they gave Trump a temporary no. He then started from the beginning of the “chain of decisions.” 

According to the court’s description, the administration argued that federal immigration enforcement in Chicago faced serious resistance, including threats and assaults, and that protests around an ICE processing facility in Broadview were sometimes violent and damaged federal property. The president in early October 2025 called roughly 300 members of the Illinois National Guard into active federal service and then federalized members of the Texas National Guard and sent them to Chicago as well invoking 10 USC section 12406, the provision that allows federalization when a president is unable with the regular forces to execute the laws of the United States. 

Illinois sued. A district court entered a temporary restraining order. The Seventh Circuit allowed the guard to remain federalized but kept the bar on deployment. Now the Supreme Court, at least at this preliminary stage, has refused to override those lower court blocks.

What’s important is why the majority’s reasoning turns on something most Americans never think about until it explodes onto the front page. What regular forces means in that statute and how that collides with the posyic commitatus tradition [posse comitatus], the general rule that the military does not execute the laws inside the United States unless Congress has clearly authorized it. The court signaled that regular forces likely means the regular US military, not civilian federal law enforcement.

And if that’s true, then the statute’s logic forces you into an uncomfortable box. You can only invoke section 12406 in situations where the military could legally execute the laws, which is rare and exceptional. And the government, the court said, had not identified a source of authority that would allow the laws in Illinois in the first place. 

Read that again because it matters. This wasn’t the court saying there is no disorder. It wasn’t the court blessing Chicago’s politics or condemning Trump’s immigration enforcement. It was the court saying, “You haven’t shown the legal bridge that gets you from protecting federal personnel and property to executing the laws. And you haven’t shown the statutory or constitutional exception that let you use the military that way in Illinois, at least not yet. Not on this emergency posture.” 

Now, three justices dissented publicly, Alito, Thomas, and Gorsuch. So, you can already see where this is going. Not just a legal fight, but a legitimacy fight. 

And this is where the deeper tension emerges, the kind that history recognizes immediately because there are two competing instincts in American life. And both can sound patriotic depending on who’s speaking. One instinct says the federal government has the duty to enforce federal law to protect its officers and to keep its buildings from being besieged, especially if local politics become permissive toward disruption.

The other instinct says the founders divided militia authority for a reason. And the minute a president starts treating troop deployments as a routine answer to civic disorder, especially in states governed by political opponents. You are moving into the most combustible territory in a federal republic, the normalization of domestic military posture as a tool of governance. And the court is telling Trump, for the moment, you can’t just gesture at danger and skip the legal architecture that stands between a republic and a security state.

That doesn’t end the argument. It starts the real one. Because if Chicago truly is becoming the kind of environment the administration describes where federal officers cannot do their jobs without being obstructed and attacked, then the public will ask why enforcement is impossible without troops. And if the situation is being exaggerated as Illinois argues, then the public will ask why the country is being asked to accept a military solution to what state and local police claim they can manage.

Either way, we are back to an old question that never disappears, only changes costumes. When the center cannot hold, who has the lawful authority to restore order? And what is the limit? That’s the question this case is really about.

Hanson continues the podcast in a second part where he explains “why the phrase execute the laws is the loaded gun in this entire dispute.” He added, “Because once you redefine that phrase, you redefine the balance between liberty and order in the American tradition.” ….