December 26, 2025

On Tuesday, December 23, the U.S. Supreme Court made a preliminary finding that President Donald J. Trump’s deployment of federalized National Guard troops in the Chicago area beginning in October was unlawful. Six of the nine justices held that the law Trump invoked to send in National Guard troops requires that a president first send in the regular U.S. military to execute the laws, and that the National Guard can be deployed only if the president remains “unable with the regular forces to execute the laws of the United States.”

But, they noted, the circumstances under which the president can use the military against U.S. citizens are “exceptional.” The 1878 Posse Comitatus Act prohibits the U.S. military from executing the laws “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.”

So, the justices concluded, “before the President can federalize the Guard…, he likely must have “statutory or constitutional authority to execute the laws with the regular military and must be ‘unable’ with those forces to perform that function. At this preliminary stage, the Government has failed to identify a source of authority that would allow the military to execute the laws in Illinois. The President has not invoked a statute that provides an exception to the Posse Comitatus Act.”

In an opinion concurring with the five justices who signed onto the majority opinion, Justice Brett Kavanaugh added a footnote addressing what have become known as “Kavanaugh stops.” In September the Supreme Court majority allowed immigration officers to stop individuals on the basis of their apparent race or ethnicity, speaking in Spanish or with an accent, working in certain sectors, or being present at certain locations, like an agricultural site—so-called racial profiling.

In his support for that decision, Kavanaugh wrote that when those individuals legally in the U.S. are stopped and questioned, “the questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to immigration officers that they are U.S. citizens or otherwise legally in the U.S.”

Since then, as Chris Geidner of Law Dork recorded, U.S. citizens have repeatedly been threatened, beaten, and detained. Currently, Immigration and Customs Enforcement (ICE) is holding a 22-year-old Maryland woman, Dulce Consuelo Diaz Morales, for deportation, although she has produced a U.S. birth certificate and Maryland immunization records and her lawyer insists she is a U.S. citizen. ICE officials say the ...