Three months ago, hundreds of federalized National Guard troops were assembling at military bases in Illinois for imminent deployment by orders of President Donald Trump to bolster his administration’s aggressive deportation campaign in the Chicago area.
The state of Illinois filed suit, leading to a daylong, emotionally charged hearing that ended with a federal judge issuing a historic restraining order blocking the deployment.
But the atmosphere was far different in that same courtroom on Wednesday as lawyers for the Department of Justice, after a stinging defeat at the U.S. Supreme Court, said they’re now looking to settle the litigation over the controversial troop deployment short of a trial.
The development came during a status hearing before U.S. District Judge April Perry on the next steps in the lawsuit brought by Illinois, which had been headed toward a lengthy preliminary injunction hearing over the legality of Trump’s mobilization of the Guard.
But the Department of Justice’s case took a blow three weeks ago when the Supreme Court denied a request from the Trump administration to allow the Republican president to deploy troops to Illinois streets while the court battle played out.
Lawyers for Attorney General Kwame Raoul have since argued that although the high court’s ruling made no final determinations, it “effectively resolves as a matter of law” that the federalization and deployment orders by Trump were illegal.
In court Wednesday, DOJ attorney Christopher Edelman told Perry they have “obtained authorization” from senior administration officials to resolve the case by settlement, and requested a 30-day stay in the case while terms are negotiated.
Christopher Wells, a lawyer for the state, said they were “optimistic” that a settlement can be reached but asked for a quicker timeline.
Perry gave both sides until Jan. 28 to negotiate and submit another status report, and asked the parties to come back for another status hearing on Jan. 30.
Potential settlement terms were not discussed in court. A spokesman for Gov. JB Pritzker had no immediate comment Wednesday.
The development surprised some constitutional law experts, who wondered what exactly a settlement in such a hotly contested case might look like, particularly with a Republican administration not known for making deals with state Democratic leaders.
“It seems to me what the city and state would want is some kind of concession saying these are the circumstances where the National Guard can’t be deployed,” said Paul Gowder, a professor with Northwestern University School of Law who specializes in constitutional issues. “I would be shocked if the federal government would grant that. … I wonder if by saying ‘we are open to settlement,’ what they really meant was, ‘we are open to the state not getting a final ruling.'”
Gowder also said it was difficult to see what the state of Illinois hoped to get out of negotiating with the Trump administration rather than pursuing a more permanent injunction. Having such a ruling in place makes it far easier and quicker to go into court with alleged violations, he said.
One possibility, Gowder said, is that the state lawyers feel the Supreme Court’s ruling, while limited, was favorable enough that it makes more sense to let it stick rather than have Trump force the issue by testing his authority in new ways, including invoking the Insurrection Act.
The state could also be taking a more conciliatory approach given Trump’s claims he was abandoning the effort to use the National Guard in Illinois and other states.
“Either way, it seems like it was a tactical decision for the state to make,” Gowder said.
The amicable hearing Wednesday was in stark contrast to the emotional proceedings in the case just a few months ago, which played out under dramatically different circumstances.
When the lawsuit was filed in October, Operation Midway Blitz was in full swing, with near-daily clashes between immigration agents and protesters on the streets and outside the Immigration and Customs Enforcement facility in suburban Broadview.
At the time, National Guard troops from Illinois and Texas had already been “federalized” and were assembling at bases for imminent deployment.
Now, those forces have been largely demobilized, though some 195 Illinois National Guard troops remained in Fort Bragg, North Carolina, as of last week “completing the demobilization process,” which was expected to conclude this week.
The fight landed at the Supreme Court days after Perry issued a temporary restraining order barring Trump from deploying Guard troops to the state. That order has since been continued indefinitely pending the resolution of the lawsuit.
On Dec. 23, the divided opinion handed down by the conservative-majority Supreme Court represented a significant political victory for Pritzker and other state Democratic leaders in their escalating battle with the White House’s plans to federalize troops on U.S. soil to assist in mass deportation efforts.
“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 high court’s order said. “Thus, at least in this posture, the Government has not carried its burden to show that (the law) permits the President to federalize the Guard in the exercise of inherent authority to protect federal personnel and property in Illinois.”
Three of the court’s conservative justices, Clarence Thomas, Samuel Alito and Neil Gorsuch, lodged dissents, with Thomas and Alito writing that the court “has unnecessarily and unwisely departed from standard practice.”
But even those dissents seemed to indicate Trump would have a tough legal road should he try to invoke the Insurrection Act or other constitutional authorities to deploy the National Guard against the wishes of a state.
Gorsuch wrote in his dissent that while he would have granted a stay as a preliminary matter, there were “gravely consequential questions concerning what roles the National Guard and U.S. military may play in domestic law enforcement.”
“When, if ever, may the federal government deploy the professional military for domestic law enforcement purposes consistent with the Constitution?” Gorsuch wrote.
A week after the ruling, a defiant Trump posted on social media that he was ordering the National Guard removed from Illinois, but threatened to return.
“We will come back, perhaps in a much different and stronger form, when crime begins to soar again – Only a question of time!” the president wrote.
jmeisner@chicagotribune.com
