[Order Michael Finch’s new book, A Time to Stand: HERE. Prof. Jason Hill calls it “an aesthetic and political tour de force.”]
There is an insurrection brewing in the Chicago area. Rioters have been throwing objects at, ramming cars into, dragging, and assaulting federal agents, as well as attempting to set up a blockade at an Immigration and Customs Enforcement (ICE) processing facility in the Chicago suburb of Broadview, Illinois. The ICE commander who is leading the federal enforcement effort in the Chicago area, Gregory Bovino, had a bounty placed on his head to “take him down.” An illegal immigrant, whom federal law enforcement fortunately caught and arrested, had offered and promoted this bounty.
Threats against ICE agents have also broken out in Chicago itself. In one instance, Chicago police officers were reportedly ordered to “stand down” rather than assist an ICE agent who was surrounded by a menacing mob in one of the city’s neighborhoods. This followed Chicago Mayor Brandon Johnson’s issuance of an executive order last August barring Chicago police from assisting federal immigration enforcement agents. A Chicago Police Department commander who allegedly ordered the police to “stand down” may well have interpreted the executive order to include barring Chicago police from coming to the aid of a federal officer in distress.
Illinois’s Governor JB Pritzker and Chicago Mayor Johnson are allowing rioters to obstruct and physically attack federal law enforcement personnel who are performing their duty to enforce the immigration laws of the United States. They paint ICE agents as the enemy, using incendiary terms like “thugs” and “secret police” to vilify them.
Rather than holding the mobs fully responsible for their lawbreaking, Governor Pritzker and Mayor Johnson blame the Trump administration for the violence. According to the Pritzker-Johnson duo’s false narrative, President Trump is responsible because he had the audacity to send ICE agents into Chicago to apprehend and detain dangerous illegal immigrants.
Pritzker and Johnson are actively resisting federal authority by shielding illegal immigrants from arrest. “I don’t take orders from the federal government,” Mayor Johnson declared defiantly at a news conference. He has established what he calls “ICE Free Zones” in Chicago. At a No Kings protest on October 18th, Chicago’s mayor warned the city’s residents to be prepared for a “rematch of the Civil War.” Is he looking to secede from the union as the Confederate states tried to do in setting off the original Civil War? It sure sounds like it.
Governor Pritzker, referring to ICE agents, threatened, in his words, to “hold them responsible despite the fact of federal immunity.” Like Mayor Johnson, he needs a refresher course on the U.S. Constitution’s Supremacy Clause.
Governor Pritzker did eventually dispatch Illinois state police to Broadview to be part of a “Unified Command” with county and local police. However, the main purpose of this “Unified Command,” Pritzker said, was to “ ensure people could peacefully protest, protect residents and businesses in Broadview, and ensure that third parties that need access to the facility – including attorneys and legal representatives, people bringing medicine to detainees, and representatives from foreign consulates – can maintain clear points of access to the facility.”
Protecting ICE agents and federal property from the rioters? Not so much.
Adding insult to injury, the courts so far are siding with the Illinois governor and Chicago mayor who sued to block President Trump’s efforts to protect federal law enforcement personnel and facilities with National Guard troops. President Trump had ordered National Guard troops to be deployed to the Chicago area to protect ICE agents and federal facilities pursuant to the statutory authority granted to the president in 10 U.S.C. § 12406.
U.S. District Court Judge April Perry, a Biden nominee, issued a restraining order against the deployment. She overrode President Trump’s judgment that he is “unable with the regular forces to execute the laws of the United States” – one of the triggers allowing the president to invoke this statute.
Judge Perry conceded that there were “acts of violence” and that there was “evidence of property destruction, and discrete groups who have attempted to impede DHS agents.” But in an astonishing departure from the reality on the ground, Judge Perry concluded that any obstructions “have been of limited duration and swiftly controlled by authorities.” Based on her fallacious premise, Judge Perry claimed that “there is significant evidence that DHS has not been unable to carry out its mission.” She ignored the fact that ICE officers have been risking their lives in the face of mob violence against them as they try to carry out their mission to arrest dangerous illegal immigrants. These illegal immigrants include murderers, pedophiles, rapists, kidnappers, gang members, and armed robbers.
ICE agents should not have to risk death or severe injury to themselves and their families just for doing their job. ICE needs reinforcements to protect them against the grave dangers they are facing every day, which President Trump decided to supply in the form of National Guard troops. The president is entitled to broad latitude in making that decision, which Judge Perry unreasonably second-guessed.
The U.S. Court of Appeals for the 7th Circuit tried to have it both ways. First, it ruled that the Trump administration can federalize the National Guard in Illinois. But the catch is that the administration could not actually use the National Guard troops without Governor Pritzker’s consent, which obviously the governor will not provide. The net effect, which a panel of 7th Circuit judges reinforced in an opinion issued on October 16th, is to leave Judge Perry’s order barring the deployment of the National Guard in the Chicago area intact.
The appellate judges dismissed the ongoing acts of violence and obstruction against federal law enforcement personnel as mere “problematic incidents.” They agreed with Judge Perry that “there is insufficient evidence that protest activity in Illinois has significantly impeded the ability of federal officers to execute federal immigration laws.”
Rioters assaulting and throwing objects at ICE agents, slashing tires, ramming cars into ICE vehicles, dragging an ICE agent, and blocking the entrance of an ICE facility are not mere “problematic incidents,” unworthy of being taken seriously. They are part of an organized effort to significantly impede ICE agents’ ability to safely execute the nation’s immigration laws.
The Trump administration has appealed to the Supreme Court for an emergency ruling that would allow the deployment of the National Guard in the Chicago area to protect federal personnel and federal property from the rioters.
Given the Illinois federal judges’ refusal to defer to President Trump’s reasonable action taken to protect ICE agents’ lives and an ICE facility from rioters, he is also considering exercising his much stronger powers under the Insurrection Act. The president may deploy troops under this statute’s very broad authority when he “considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.” Whenever the president determines that such a situation exists, he “may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.”
The factual predicates for the president’s resorting to invoke the Insurrection Act are clearly present in this case:
There have been “unlawful obstructions” committed by riotous “assemblages” in the Chicago area that have hindered ICE officials from being able to duly enforce the immigration laws of the United States.
Illinois state and local authorities have failed to quell the mayhem and adequately protect ICE agents who are performing their federal law enforcement duties. Instead, they have tried to stand in the president’s way and have engaged in reckless rhetoric vilifying the ICE agents. Moreover, Pritzker and Johnson refuse to allow state and local police to detain dangerous illegal immigrants about to be released from prison and to seamlessly transfer them to federal custody rather than let them loose on the streets.
Judicial proceedings “in the ordinary course” to date have frustrated President Trump’s ability to enforce the nation’s immigration laws pursuant to his powers under 10 U.S.C. § 12406.
In short, there are more than sufficient reasons for President Trump to exercise his extraordinary powers under the Insurrection Act to deploy whatever military personnel he deems necessary to protect federal law enforcement officers and property in Illinois. He would not be ruling like an unrestrained “king,” as his Trump Derangement Syndrome adversaries repeatedly accuse him of doing. President Trump would be performing his constitutional duty to “take Care that the Laws be faithfully executed,” which include the federal immigration laws, and using the broad powers that Congress granted presidents to overcome violent resistance.
Whether on the emergency appeal already before the Supreme Court or on another appeal if lower progressive courts try to stymie his use of the Insurrection Act, President Trump should prevail at the highest court of the land.
