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Justice Samuel Alito criticized the majority of the Supreme Court in a strong dissent on Tuesday after the high court decided 6-3 to temporarily block President Donald Trump from sending the National Guard to Chicago.
Alito said the high court majority made “unwise” and “unwise” decisions to reach its decision. Most of them didn’t give enough credit to Trump after the president found that protesters were blocking immigration officials and other federal workers from doing their jobs in Chicago and that the National Guard needed to step in to help.
“Whatever one may think of the current administration’s enforcement of immigration laws or the manner in which ICE has conducted its operations, the protection of public officials from potentially dangerous attacks must not be compromised,” Alito wrote.
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Supreme Court Justice Samuel Alito (Erin Schaff/The New York Times via AP, Pool, File)
The lawsuit was prompted by Trump’s request for an unusual federal law to mobilize up to 300 members of the National Guard and send them to protect workers and government buildings.
The Trump administration stated that the protesters were disrupting, beating and threatening ICE officials, and the National Guard was needed because the leaders of the Democratic Republic of the Illinois’ and local law enforcement were not discussing the issue, the administration said.
Illinois sued, and the lower courts blocked the deployment of the National Guard, finding that Trump did not meet the requirements of the law that says the president can use the reserve forces only when “he cannot by ordinary force carry out the laws of the United States.” The decision of the Supreme Court supported what was found when the case continued in the courts.
A majority of the Supreme Court said in the unsigned order that “regular forces” meant the US military, not ICE or other law enforcement officials. Most said that since Trump had not given a reason to use the regular military for domestic purposes in Chicago, there was no way to eliminate that option before using the National Guard.
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The Department of Homeland Security criticized Illinois Democratic Gov. JB Pritzker (R) for not standing up in response to a chaotic protest against ICE in Broadview, Illinois. (Photos by Anna Moneymaker/Getty and Jon Stegenga via Storyful)
Alito, joined by Justice Clarence Thomas, dissented, saying the majority raised it prematurely and adopted an “eleventh-hour argument” about the definition of “general power.” Justice Neil Gorsuch issued a separate dissent.
The majority also took issue with the law’s language regarding enforcement, saying that if the National Guard was merely protecting government officials, that would not amount to enforcement.
And, if the National Guard were to issue the rules, that would violate the Posse Comitatus Act, which says the military cannot act as domestic police unless Congress authorizes it, the majority said.
Alito, an appointee of President George W. Bush, said he found it “puzzling” that the majority thought the Posse Comitatus Act was so important, saying the president could use the military for “many domestic purposes.” The Constitution allows the president to use the military in response to war, rebellion or “other dire emergencies,” Alito wrote.
The conservative justice also warned of the broader implications of the majority’s decision, as Trump has tried to send the National Guard to other cities as part of a crackdown on immigration enforcement and street crime. The president also faced legal backlash in California and Portland, Oregon, but the Chicago case was far from the court system.
A protester waves an American and Mexican flag during a protest in Compton, California, on June 7, 2025, after immigration authorities conducted operations. (Ethan Swope/The Associated Press)
Requiring Trump to use other military forces before using the National Guard would lead to “dramatic consequences,” Alito said.
“Under the Court’s interpretation, members of the National Guard could arrest and process deportable aliens, but they would not have formal authorization to perform security duties,” Alito wrote. “Our country was wary of using the military as domestic police, but was comfortable with their use for the sole purpose of protection.”
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Illinois had argued that the ICE protests were largely peaceful and that local law enforcement had the unrest under control. The state will suffer irreparable harm if the courts do not stop Trump from using the National Guard, state attorneys said.
“The planned deployment would interfere with Illinois’ independent interests in controlling and overseeing its law enforcement activities,” the attorneys wrote, adding that “Illinois’ right” to use its law enforcement resources as it sees fit is the kind of “intangible and intangible interest” that courts have deemed irreparable.
