Texas Guard in Chicago?

Although § 502(f)(2) has been used for various federal missions over the years, it didn’t become a source of controversy until 2020—when President Trump relied upon it to solicit governors to send members of their National Guards to Washington, D.C., after and in response to the George Floyd-related protests. Critically, unlike the prior uses of § 502(f)(2), this one came over the express objection of the local authorities where the out-of-state troops were sent, i.e., the Mayor of the District of Columbia. But that use quickly ended—and never produced meaningful litigation over the scope and limits of § 502(f)(2).

[...]

[Article IV, Section 4 of the Constitution suggests] there is a role for state consent when out-of-state troops are being used in response to “domestic violence” (as opposed to “invasion”). And although my own view is that state consent is not a prerequisite to the use of federal troops in their federal capacity, it is more than a little difficult to think that the Founders would ever have consented to a Constitution under which one state could send its un-federalized militia into another state without the latter state’s consent.

Thus, it seems to me that there’s a strong (if novel) argument that § 502(f)(2) would violate Article IV of the Constitution insofar as it allowed for the deployment of un-federalized out-of-state National Guard troops into a state that didn’t want the troops there. (This argument would not have been available to the District of Columbia in 2020, since D.C. is not a state.) To be sure, there’s no on-point precedent here. But that seems just as powerful an argument against this being constitutional as for it being so.

[...]

Texas and Illinois are both parties to the Emergency Management Assistance Compact (EMAC)—an interstate compact ratified by Congress in 1996. EMAC includes a number of provisions through which states have committed to assisting each other during domestic emergencies, including “the use of the states’ National Guard forces, either in accordance with the National Guard Mutual Assistance Compact or by mutual agreement between states.” Neither Illinois nor Texas is a party to the National Guard Mutual Assistance Compact, but the more important point is that EMAC is predicated on “mutual agreement between states.”

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Neither of these arguments is a slam-dunk, at least in part because, frankly, we’ve never had a President who thought it was a good idea to try to pull a stunt like this (or, at the very least, who didn’t face insurmountable political obstacles to attempting to do so). But my own view, having spent a lot of time looking at Founding-era materials on domestic uses of the military, is that a Constitution that authorized what Trump is apparently contemplating would never have been ratified by states that were already suspicious of giving away too much control over their own affairs.

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I am firmly of the view (which some scholars don’t support) that Congress has the constitutional authority to allow for domestic use of federal troops even in states in which the Governor objects—something it has provided for, e.g., in a key provision of the Insurrection Act. (If this sounds ominous, consider that this was the authority that multiple presidents relied upon to use federal troops to enforce school desegregation orders over the objections of local and state officials.) If the situation in Chicago is sufficiently serious so as to warrant the use of military force not controlled by the Governor of Illinois, both the Constitution and statutes that date back to 1792 provide the President with a means of responding—one that has been used numerous times over our nation’s history.

But that’s exactly the point: The Constitution allows for federal troops to be used in states over that state’s objections (in limited circumstances). It does not, and should not be read to, allow for out-of-state troops that haven’t been federalized to do so.

  Steve Vladeck Substack

I have no doubt Trump will do what he pleases, and Greg Abbott will happily go along. It will then be up to Illinois to try to turn the Texas troops out.

Expect Supreme Court involvement. And possibly violence in Chicago.

Or not...

 "New Orleans...has a crime problem.  We'll straighten that out in about two weeks.  It'll take us two weeks.  Easier than D.C.  But we could straighten out Chicago.  All they have to do is ask us."

Yeah, they're not gonna ask.

Trump's infamous two weeks.  I do wonder why he is stuck on everything taking two weeks.  What happened in two weeks in his life?

UPDATE 08:33 am: