2025 WL 2886645
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United States District Court, N.D. Illinois, Eastern Division.
State of ILLINOIS, a sovereign state; and the City of Chicago, an Illinois municipal corporation, Plaintiffs,
v.
Donald J. TRUMP, in his official capacity as President of the United States; Department of Homeland Security; Kristi Noem, in her official capacity as Secretary of the Department of Homeland Security; Department of Defense; Peter B. Hegseth, in his official capacity as Secretary of the Department of Defense; United States Army; Daniel P. Driscoll, in his official capacity as Secretary of the Army, Defendants.
Case No. 25-cv-12174
|
Signed October 10, 2025
OPINION AND ORDER
April M. Perry, United States District Judge
*1 Since this country was founded, Americans have disagreed about the appropriate division of power between the federal government and the fifty states that make up our Union. This tension is a natural result of the system of federalism adopted by our Founders. And yet, not even the Founding Father most ardently in favor of a strong federal government believed that one state’s militia could be sent to another state for the purposes of political retribution, calling such a suggestion “inflammatory,” and stating “it is impossible to believe that [a President] would employ such preposterous means to accomplish their designs.”1 But Plaintiffs contend that such an event has come to pass, and argue that National Guard troops from both Illinois and Texas have been deployed to Illinois because the President of the United States wants to punish state elected officials whose policies are different from his own. Doc. 13 at 8.2 Plaintiffs further argue that President Donald J. Trump has exceeded the authority granted to him by 10 U.S.C. § 12406, violated the Tenth Amendment, and that the deployment of federalized troops violates the Posse Comitatus Act. Id. at 9. Before this Court is a request for a temporary restraining order (“TRO”) and preliminary injunction barring mobilization of the National Guard or deployment of the U.S. military over the objection of the Governor of Illinois. Doc. 3. For the reasons that follow, Plaintiffs’ motion for a TRO is GRANTED, in part.3

… 

HISTORICAL BACKGROUND
As discussed, this case concerns questions of federalism and the Constitutional and statutory limits placed on the President’s ability to deploy National Guard troops for purposes of domestic law enforcement. Especially at issue is the scope of 10 U.S.C. § 12406, the statutory predicate for the current National Guard deployment in Illinois. Because there is not an abundance of case law interpreting Section 12406, the Court begins with some historical background.
 
A. The Constitution
During the Constitutional Convention of 1787, one topic of hot debate among the Founders was how to properly scope the federal government’s military powers. Indeed, among the grievances directed against King George III by signatories to the Declaration of Independence was his keeping “in Times of Peace, Standing Armies, without the Consent of our Legislatures.” Decl. of Independence para. 13 (U.S. 1776). Thus, while the Founders recognized that well-trained soldiers were necessary “for providing for the common defense” of our young nation, they were concerned “that a national standing Army posed an intolerable threat to individual liberty and to the sovereignty of the separate states.” Perpich v. Dept. of Defense, 496 U.S. 334, 340 (1990); see also Reid v. Covert, 354 U.S. 1, 23–24 (1957) (“The Founders envisioned the army as a necessary institution, but one dangerous to liberty if not confined within its essential bounds.”). …
 
*7 Another concern among some Founders was the extent of the federal government’s powers to deploy federal military forces—including federalized militia—for purposes of general law enforcement. For instance, in response to a proposal to add language to the Constitution which would empower the federal government to “call forth the force of the Union” against states that passed laws contravening those of the union, James Madison moved successfully for its removal, opining that such use of force against a state “would look more like a declaration of war, than an infliction of punishment.” Robert W. Coakley, The Role of Federal Military Forces in Domestic Disorders 1789–1879 8 (citing Max Farrand, The Records of the Federal Convention, vol. 1 at 54). During the ratification debates, Patrick Henry expressed fears that the language of the Militia Clause allowing Congress to have the militia called forth to execute the laws of the Union would open the door to federal troops engaging in domestic law enforcement. 3 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 387 (1836) [hereinafter “Elliot Debates”]. Antifederalist Henry Clay expressed similar concerns and asked the Federalists “for instances where opposition to the laws did not come within the idea of an insurrection.” Id. at 410. To this, Madison replied that “there might be riots, to oppose the execution of the laws, which the civil power might not be sufficient to quell.” Id. (emphasis added). Patrick Henry pressed the issue, charging that granting power of “calling the militia to enforce every execution indiscriminately” would be “unprecedented,” and a “genius of despotism.” Id. at 412. To this, Madison noted the “great deal of difference between calling forth the militia, when a combination is formed to prevent the execution of the laws, and the sheriff or constable carrying with him a body of militia to execute them in the first instance; which is a construction not warranted by the [Militia] clause.” Id. at 415.
 
Confronted with such concerns, even federalist proponent Alexander Hamilton rejected the notion that the militia could enforce domestic law, opining that given “the supposition of a want of power to require the aid of the POSSE COMITATUS is entirely destitute of colour, it will follow, that the conclusion which has been drawn from it, in its application to the authority of the federal government over the militia is as uncandid as it is illogical.” The Federalist No. 29, at 188 (Alexander Hamilton) (Jacob Ernest Cooke, ed., 1961). To Hamilton, then, it was nothing more than an “exaggerated and improbable suggestion[ ]” that the federal government would command one state’s militia to march offensively into the territories of another, given how assuredly such conduct would invite “detestation” and “universal hatred” by the people of the would-be usurper. Id. at 186–87.
 
On September 17, 1787, the U.S. Constitution was ratified. Many of the concerns debated by the Founders reflect in its contours. Regarding the militia, the Founders chose to vest Congress—not the President—with constitutional power “to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions,” U.S. Const. art. I, § 8, cl. 15 (the “Calling Forth Clause”), as well as to provide for the “organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States.” U.S. Const. art. I, § 8, cl. 16. The President, then, would be the “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” U.S. Const. art. 2, § 2, cl. 1.
 
That the Framers understood the Calling Forth Clause narrowly can be seen in Congress’s earliest efforts to put the clause into legislative practice. In 1792, Congress enacted an Act to “provide for calling forth the Militia to execute the laws of the Union, suppress insurrections and repel invasions.” Act of May 2, 1792, 1 Stat. 264 (1792). In 1795, Congress repealed the 1792 Act and passed an amended version. Act of February 28, 1795, 1 Stat. 424 (1795). In both versions, Congress authorized the President to call upon the militia in response to invasion or insurrection without much limitation. But for the President to call forth the militia in cases where “the laws of the United States shall be opposed, or the execution thereof obstructed,” stricter controls were imposed. Id. Specifically, Congress authorized the calling forth of militia only when the forces of obstruction were “too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals” by the Act. Id. These early efforts demonstrate contemporaneous understanding that military deployment for purpose of executing the laws was to be an act of last resort, only after other systems had failed.
 
… 
B. Posse Comitatus Act
American rejection of military encroachment into domestic law enforcement was explicitly rejected in 1878, with the passage of the Posse Comitatus Act. As amended, it provides that:
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
18 U.S.C. § 1385.
 
The historical context that gave rise to the Posse Comitatus Act merits discussion. After the Civil War, federal troops were deployed to states of the former Confederacy for purposes of keeping public order and enforcing federal law. See Sean J. Kealy, Reexamining the Posse Comitatus Act: Toward a Right to Civil Law Enforcement, 21 Yale L. & Pol. Rev. 383, 393 (2003). While deployed, these troops carried out such law enforcement duties as enforcing taxes, arresting members of the Ku Klux Klan, and guarding polling places to ensure newly enfranchised former slaves could cast their votes in accord with federal law protections. Id. n. 59. In response to this exercise of federal power, Congressmen from Southern states pushed for, and succeeded, in passing the Posse Comitatus Act as a means to “limit the direct active use of federal troops by law enforcement officers to enforce the laws of this nation.” United States v. Hartley, 796 F.2d 112, 114 (5th Cir. 1986) (internal quotes and citations omitted).
 
*9 As detailed further below, the Court’s decision today does not turn on the merits of Plaintiffs’ claim that Defendants violated the Posse Comitatus Act. That said, the Act represents another moment that America recognized the importance of checking military intrusion into civilian law enforcement.

C. The Origins of 10 U.S.C. § 12406
The final piece of our historical puzzle is 10 U.S.C. § 12406, which Defendants represent supplies the authority for the deployment of federalized National Guard troops into Illinois. In its current incarnation, it provides:
Whenever
(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
(3) the President is unable with regular forces to execute the laws of the United States;
the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel invasion, suppress rebellion, or execute those laws.
10 U.S.C. § 12406.
 
Key provisions of Section 12406’s language originate with the Dick Act of January 21, 1903, 32 Stat. 775–80 (1903), and Militia Act of 1908, 35 Stat. 399–403 (1908). In the leadup to their enactment, leading federal executives expressed their views on the inadequacy of the nation’s militia. E.g., President Roosevelt, address to Congress (December 3, 1901) (commenting that the existing laws governing the organization of the militia were “obsolete and worthless”); Id. Secretary of War Elihu Root (sharing similar view on the lack of a disciplined militia system to support the nation’s “small Regular Army”). Responding to these concerns, Congress passed the Dick Act. Among its innovations, the Dick Act authorized substantial funding for professional equipment (Section 3) and training by federal regular forces (Section 20). Dick Act, 32 Stat. 775. Beyond these modernizations, the Dick Act also represents the first statutory usage of the name “National Guards” to refer to the state militias. Id. at 333–34 (1988). Congress revisited the subject matter of the newly modernized National Guard with the Militia Act enacted May 27, 1908 (“1908 Act”). By that time, the Dick Act’s modernization efforts were largely understood a success. As then-Acting Secretary of War Robert Shaw put in his report to Congress on the 1908 bill, “As a result of the initial expenditure [under the Dick Act] the organized militia is now fairly well clothed, armed, and equipped for active military service.” See H.R. Rep. No. 60-1067, at 6 (1908).
 
Among other amendments, the 1908 Act made two changes of note. First, it proposed to authorize the President to call forth the National Guard to serve “either within or without the territory of the United States” for the first time. 35 Stat. 400; cf. also See H.R. Rep. No. 1094, 57th Cong. (1902) at 22-23 (describing, at a time prior to this change, how “services required of the militia can be rendered only upon the soil of the United States or of its Territories”). This new language was accompanied by a change to the calling forth articles, which as of the 1908 Act read,
That whenever the United States is invaded, or in danger of invasion from any foreign nation, or of rebellion against the authority of the Government of the United States, or the President is unable with the regular forces at his command to execute the laws of the Union in any part thereof, it shall be lawful for the President to call forth such number of the militia ... as he may deem necessary to repel such invasion, suppress such rebellion, or to enable him to execute such laws.
*10 35 Stat. 400 (emphasis added). In his comments on the bill, Secretary Shaw characterized these two changes—the new Presidential authority to call the militia abroad and changes to Section 4—as complementary provisions. Specifically, Shaw noted:
This wholesome and patriotic provision [for the National Guard to operate outside the United States] originates in the organized militia and constitutes an offer of their services in case of national emergency during the entire period of the emergency as measured by the call of the President, and is coupled with the reasonable and proper requirement that—
“When the military needs of the Federal Government arising from the necessity to execute the laws of the Union, suppress insurrection, or repel invasion can not be met by the regular forces, the organized militia shall be called into the service.”
H.R. Rep. No. 60-1067, at 6 (1908) (emphasis added). Thus, Shaw understood the 1908 Act as a step towards making the National Guard “an essential and integral part of the first line of national defense.” Id. at 6–7. Through the twentieth century, Congress continued to bring the National Guard more into the fold of the nation’s general military apparatus. See generally Jeffrey A. Jacobs, Reform of the National Guard: A Proposal to Strengthen the National Defense, 78 Geo. L.J. 625, 629—31 (1990).

LEGAL STANDARD
A request for injunctive relief “is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original). The standard for issuing a TRO is the same as is required to issue a preliminary injunction. See Merritte v. Kessel, 561 Fed. Appx. 546, 548 (7th Cir. 2014). To obtain a TRO, the movant must demonstrate: (1) a likelihood of success on the merits; (2) that there is no adequate remedy at law; and (3) that the movant will suffer irreparable harm if the relief is not granted. Smith v. Exec. Dir. of Indiana War Mem’ls Comm’n, 742 F.3d 282, 286 (7th Cir. 2014). If the movant makes this showing, the court then “must weigh the harm that the plaintiff will suffer absent an injunction against the harm to the defendant from an injunction.” GEFT Outdoors, LLC v. City of Westfield, 922 F.3d 357, 364 (7th Cir. 2019). Finally, in balancing the harms, the court must consider the public interest in granting or denying the requested relief. Ty, Inc. v. Jones Grp., Inc., 237 F.3d 891, 895 (7th Cir. 2001).

…
 
*11 The Court notes that its determinations for the purposes of this TRO are necessarily preliminary ones, based on the materials presented thus far, and constrained by the amount of time that the Court has had to review this weighty and urgent matter. The Court has had less than five days to consider 200 years of history, a factual record of approximately 500 pages, extensive briefing that raises complex issues of law for which there is limited precedent, and the six amicus curiae briefs that have been filed. With those caveats in mind, the Court determines that a TRO is warranted.
 
I. Justiciability  [omitted]

II. Likelihood of Success on the Merits

A. 10 U.S.C. § 12406
Now that the Court has concluded that it can reach the merits of the case, it does so by beginning with 10 U.S.C. § 12406.13
 
*14 Section 12406 states:
Whenever—
(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
(3) the President is unable with the regular forces to execute the laws of the United States;
the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws.
10 U.S.C. § 12406.
 
When interpreting a statute that leaves key terms undefined, the court must “interpret the words consistent with their ‘ordinary meaning ... at the time Congress enacted the statute.’ ” Wisconsin Cent. Ltd. v. United States, 585 U.S. 274, 277 (2018) (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)). Several sources may be useful for determining a term’s ordinary meaning at a particular time, including contemporaneous judicial decisions and dictionary definitions, see id. at 277–78, and how the term was used in other statutes enacted around the time, see Perrin, 444 U.S. at 43. Statutory interpretation is, however, a holistic endeavor “which determines meaning by looking ... to text in context, along with purpose and history.” Gundy v. United States, 588 U.S. 128, 140–41 (2019). Similarly, when defining the scope of delegated authority, a court must look “to the text in context and in light of the statutory purpose.” Id.
 
Before turning to the meaning of Section 12406’s subsections, a note on deference: Defendants are not entitled to “deference” on the issue of what constitutes a rebellion for the purposes of the Act, nor what it means to be “unable with the regular forces to execute the laws.” Those are matters of statutory interpretation, a function committed to the courts

Section 12406(2) [omitted]

2. Section 12406(3)
*16 Turning to Section 12406(3), the parties dispute both its meaning and whether its conditions have been met. With no Seventh Circuit or Supreme Court decision on Section 12406(3)’s meaning, the Court embarks—as it must—on its own, text-based interpretation of the statute. The phrase “unable with the regular forces to execute the laws of the United States” contains several key terms.
 
First, “unable.” In the late 1800s and early 1900s, “unable” was understood to mean “not having sufficient power or ability,” being incapable. Universal Dictionary of the English Language Vol. 4 at 4900 (1900) (“Not able; not having sufficient power or ability; not equal to any task; incapable.”); Noah Webster, A Dictionary of the English Language at 454 (1868) (“Not able; not having sufficient strength, knowledge, skill, or the like.”); William Dwight Whitney, The Century Dictionary Vol. VIII at 6578 (1895) (“1. Not able. 2. Lacking in ability; incapable.”). These definitions evoke a binary approach: ability or not, capability or not. This reading is consistent with the legislative history: In the words of Secretary Shaw, Section 12406(3) was to be used when “the military needs of the Federal Government arising from the necessity to execute the laws of the Union, ... can not be met by the regular forces.” H.R. Rep. No. 60-1067, at 6 (1908) (emphasis added).
 
Next, the meaning of “with the regular forces.” Several historical sources indicate that the phrase “regular forces” was understood at the time of enactment to mean the soldiers and officers regularly enlisted with the Army and Navy, as opposed to militiamen who did not make it their livelihoods to serve their country but instead took up arms only when called forth in times of national emergency.
 
First, numerous statutes from the early 1800s through when Section 12406(3) was enacted use the word “regular” or “regular forces” to distinguish the standing army from the militia. For example, in 1806, Congress passed a statute entitled “An Act for establishing Rules and Articles for the government of the Armies of the Unites States” which primarily set forth the duties and obligations of soldiers and officers in the army. 2 Stat. 359 (1806). Most articles are to this effect, but the statute also includes an article stating,
“All officers, serving by commission from the authority of any particular state, shall, on all detachments, courts martial, or other duty, wherein they may be employed in conjunction with the regular forces of the United States, take rank, next after all officers of the like grade in said regular forces, notwithstanding the commissions of such militia or state officers may be elder than the commissions of the officers of the regular forces of the United States.”
Act of April 10, 1806, 2 Stat. 359 (emphases added). The distinction again appears in 1903. Then, Congress passed an act entitled “An Act to promote the efficiency of the militia and for other purposes.” 32 Stat. 775. That statute states, “That the militia, when called into the actual service of the United States, shall be subject to the same Rules and Articles of War as the regular troops of the United States.” Act of January 21, 1903, 32 Stat. 775. And in 1908, in the same act effecting the change which led to the modern Section 12406, section 2 states:
[W]hether known and designated as National Guard, militia, or otherwise, [the militia] shall constitute the organized militia. On and after January twenty-first, nineteen hundred and ten, the organization, armament, and discipline of the organized militia in the Several States ... shall be the same as that which is now or may hereafter be prescribed for the Regular Army of the United States
*17 Act of May 27, 1908, 35 Stat. 399 § 2.
 
In addition to these statutory instances of the terms “regular” and “forces” being used to distinguish the military (in particular the Army) from the militia, there are several examples of courts discussing the important differences between the “regular forces” and the militia. In McClaughry v. Deming, Justice Peckham explained:
[A]t all times there has been a tendency on the part of the regular, whether officer or private, to regard with a good deal of reserve, to say the least, the men composing the militia as a branch not quite up to the standard of the Regular Army, either in knowledge of martial matters or in effectiveness of discipline, and it can be readily seen that there might naturally be apt to exist a feeling among the militia that they would not be as likely to receive what they would think to be as fair treatment from regulars, as from members of their own force.
McClaughry v. Deming, 186 U.S. 49, 56 (1902). The opinion repeats this distinction throughout, several times. E.g., id. at 56 (“there was a substantial difference between the regular forces and the militia”); id. (“While it may be that there was then no particular distrust or jealousy of the Regular Army, the provision in question recognized, as we have said, the difference there was between the two bodies, the regulars and the militia or volunteers.”). In the lower court decision before the Eighth Circuit, it was similarly observed when speaking about the militia as compared to the regular Army that,
The decisions of the courts had recognized the two forces as different,— the one as temporary, called forth by the exigency of the time, to serve during war or its imminence, and then to be dissolved into its original elements; the other as permanent and perpetual, to be maintained in peace and in war.
Deming v. McClaughry, 113 F. 639, 643 (8th Cir.), aff’d, 186 U.S. 49 (1902) (emphasis added).
 
Even today in the statutory context surrounding Section 12406, Title 10 makes repeated use of the words “regular” and “forces” in close proximity to each other to refer to the military (the Army, Navy, etc.) to the exclusion of the National Guard. See, e.g., 10 U.S.C. § 10103 (“Whenever Congress determines that more units and organizations are needed for the national security than are in the regular components of the ground and air forces, the Army National Guard of the United States and the Air National Guard of the United States, or such parts of them as are needed, ... shall be ordered to active duty and retained as long as so needed.”).
 
Altogether then, the phrase “unable with the regular forces to execute the laws of the United States” means that in order for the President to call forth the militia to execute the laws, the President must be incapable with the regular forces—that is, lacking the power and force with the military alone—to execute the laws. This understanding of “regular forces” is not only consistent with the ordinary meaning of “regular forces” at the time Section 12406’s operative language was initially enacted, but it makes sense given the evolution of the Army over time.
 …

CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiffs’ request for a TRO. Pursuant to Federal Rule of Civil Procedure 65(d)(1) and MillerCoors LLC v. Anheuser-Busch Cos., 940 F.3d 922 (7th Cir. 2019), the Court has entered the terms of the TRO in a separate document. Doc. 67.

Footnotes [omitted]