Political Dissent Is Not “Rebellion”: Seventh Circuit Confirms Judicial Review of Presidential § 12406 Call-Ups and Bars National Guard Deployment in Illinois

Introduction

In State of Illinois v. Donald J. Trump, the U.S. Court of Appeals for the Seventh Circuit addressed the scope of presidential authority to federalize and deploy National Guard forces under 10 U.S.C. § 12406 in response to protests surrounding federal immigration enforcement in Illinois. The dispute arose after President Trump, citing threats to federal agents and facilities during “Operation Midway Blitz,” ordered the federalization and deployment of National Guard troops in Illinois over the Governor’s objection. The State of Illinois and the City of Chicago sued, arguing the legal predicates for § 12406 were unmet and that the action violated the Tenth Amendment and the Posse Comitatus Act.

The district court issued a temporary restraining order (TRO) enjoining both federalization and deployment. On expedited review, the Seventh Circuit concluded that the TRO was appealable, rejected the administration’s argument that the President’s § 12406 determinations are unreviewable, and—giving the President substantial deference on facts—held that the record did not satisfy § 12406’s predicates. The court denied a stay as to deployment but continued a stay of the portion of the TRO that had enjoined federalization, effectively allowing the federal government to maintain federal control of Guard members but forbidding their deployment within Illinois pending appeal.

The opinion establishes two key clarifications with broad significance: (1) presidential call-ups under § 12406 are judicially reviewable because the statute enumerates factual predicates; and (2) political protests, even disruptive and occasionally violent, do not amount to a “rebellion” within § 12406(2) absent organized, deliberate violent resistance to governmental authority. The court also found insufficient evidence that federal authorities were “unable with the regular forces to execute the laws” within the meaning of § 12406(3).

Summary of the Opinion

Appealability: The TRO was appealable because it bore the “hallmarks” of a preliminary injunction—an adversary hearing, extensive submissions, and thorough reasoning.
Reviewability: The President’s decision to federalize and deploy the National Guard under § 12406 is judicially reviewable; Martin v. Mott and Dalton v. Specter do not bar review of statutory predicates in this context.
Deference and Standard of Review: While the court affords the President “a great level of deference” to factual assessments in national security contexts, it reviews statutory meaning de novo and district court factfinding for clear error.
§ 12406(2) “Rebellion”: Political opposition and protest—even if organized, persistent, and marred by isolated unlawful incidents—does not constitute a “rebellion or danger of rebellion” absent organized violent resistance to governmental authority.
§ 12406(3) “Unable with the regular forces”: On this record, federal enforcement activities were continuing successfully; thus, even under a deferential “significant impediment” standard, the predicate was unmet.
Tenth Amendment: The state-sovereignty claim rises and falls with the statutory predicates; because those predicates are unmet on this record, deploying Guard troops over the state’s objection likely infringes Illinois’s Tenth Amendment interests.
Stay factors: The administration failed to show likelihood of success or irreparable harm outweighing the state’s sovereign injury. The court therefore denied a stay as to deployment but continued to stay the bar on federalization itself.
Disposition: Motion to stay pending appeal granted in part and denied in part. The administration may keep the Guard federalized but may not deploy National Guard forces within Illinois pending appeal.

Factual and Procedural Background

Operation Midway Blitz (Sept. 8): The administration increased immigration enforcement in Illinois, focusing attention on ICE’s Broadview processing facility. Protests—longstanding but generally small—grew in size but typically remained under 200 persons, with occasional road closures and arrests.
Escalation and Response (late Sept.–Oct. 4): DHS requested troop support, and federal officials anticipated increased chemical agent use. Illinois formed a Unified Command and implemented designated protest areas. State and local law enforcement contained incidents without DHS intervention on several days; federal facilities remained open.
Federalization Orders (Oct. 4–5): The President invoked § 12406, asserting coordinated assaults impeded federal law enforcement and that regular forces were insufficient. Illinois objected. The Secretary of Defense federalized Guard troops, referencing threats and planned operations, including federalizing up to 400 Texas Guard members for deployment in Illinois and Oregon.
Government Messaging: DHS publicized the success of Operation Midway Blitz, noting increased arrests and deportations and that protests had not slowed ICE operations—facts the court later treated as undercutting “inability” claims.
District Court TRO (Oct. 9): Enjoined federalization and deployment for 14 days; found neither the “rebellion” nor “inability” predicates met; gave limited credit to federal declarants where contradicted by objective evidence and state/local accounts.
Seventh Circuit Administrative Stay: Allowed Guard members to remain under federal control but blocked deployment while considering the stay motion; final stay ruling continues that arrangement pending appeal.

Analysis

Precedents Cited and Their Influence

Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827): The administration invoked Martin to argue the President’s call-up determinations are conclusive. The Seventh Circuit distinguished Martin as addressing subordinate officers’ obligation to obey orders in wartime invasion, not whether courts may review if statutory predicates exist in peacetime domestic operations. Thus, Martin does not preclude judicial review here.
Dalton v. Specter, 511 U.S. 462 (1994): Dalton’s bar on reviewing actions “committed to the discretion of the President” did not apply because § 12406 enumerates specific, reviewable predicates and does not make the President the sole judge of their existence.
Newsom v. Trump, 141 F.4th 1032 (9th Cir. 2025): The Seventh Circuit aligned with the Ninth Circuit that § 12406 decisions are reviewable and that courts should afford “a great level of deference” to presidential factfinding. It noted—but did not adopt or reject—the Ninth Circuit’s interpretations that “unable” means “significantly impeded” and “regular forces” means federal officers.
Sterling v. Constantin, 287 U.S. 378 (1932): Cited to show executive discretion in deploying military forces is given a “permitted range of honest judgment,” but courts still review whether underlying conditions legally justify deployment.
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010); Rostker v. Goldberg, 453 U.S. 57 (1981): Support the notion that courts defer to the political branches’ national security factfinding but ultimately retain their role in statutory interpretation.
Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): Emphasized that interpretation of statutes is “precisely the business of the judiciary,” underscoring the court’s independent role in defining § 12406’s terms.
Department of Education v. California, 604 U.S. 650 (2025) (per curiam); Abbott v. Perez, 585 U.S. 579 (2018); Sampson v. Murray, 415 U.S. 61 (1974): Provided the framework for treating a TRO as appealable when it bears the hallmarks of a preliminary injunction.
Nken v. Holder, 556 U.S. 418 (2009); Camelot Banquet Rooms, Inc. v. SBA, 14 F.4th 624 (7th Cir. 2021): Articulated the stay factors applied by the court.
United States v. Morrison, 529 U.S. 598 (2000): Reinforced that general police powers reside with the states, a background principle informing the Tenth Amendment analysis.
Preston v. Thompson, 589 F.2d 300 (7th Cir. 1978): Recognized that violations of constitutional rights, including state sovereignty interests, constitute irreparable harm.

Legal Reasoning

1) Judicial Review of § 12406 Actions

The court held that because § 12406 enumerates specific triggering conditions—(1) invasion, (2) rebellion or danger of rebellion, or (3) inability to execute federal law with the regular forces—the President’s invocation is judicially reviewable. Nothing in the text renders the President the sole, unreviewable judge of those predicates. Martin v. Mott and Dalton v. Specter do not foreclose judicial review in this context.

2) Deference to Executive Factfinding; Standards of Review

The court granted “a great level of deference” to the President’s factual assessments in national security matters. Still, it reviewed statutory interpretation de novo. On the preliminary record, the district court’s factfinding—crediting state and local declarations and objective evidence over federal declarants the court found omitted material information—was not clearly erroneous. That factual backdrop drove the statutory analysis.

3) Defining “Rebellion” Under § 12406(2)

The Seventh Circuit substantially endorsed the district court’s approach in Newsom: a “rebellion” entails organized, deliberate violent resistance to governmental authority, often avowed and aimed against the government as a whole, not mere opposition to a single law or policy. The court emphasized:

“Political opposition is not rebellion.”
Protests—even organized, sustained, and accompanied by civil disobedience or sporadic unlawful incidents—do not become a rebellion.
Isolated violence by rogue participants falls within the space between protected speech and rebellion; it does not suffice to trigger § 12406(2).

Applying this understanding to the record—including small-to-moderate gatherings, episodic arrests, effective containment by state/local authorities, and continuing federal operations—the court found insufficient evidence of an actual or threatened rebellion.

4) “Unable with the Regular Forces to Execute the Laws” Under § 12406(3)

The court did not definitively resolve two interpretive disputes: whether “unable” means “significantly impeded” (Ninth Circuit’s view) or “incapable” (district court), and whether “regular forces” means federal officers broadly (Ninth Circuit) or the regular armed forces. The Seventh Circuit held that, under either understanding, the record showed continued and successful immigration enforcement:

Federal facilities remained open and operational despite protests.
State and local Unified Command effectively contained disruptions; DHS intervention was not required on key dates.
DHS and ICE publicly touted enforcement successes and increased arrests, undermining any claim of “inability.”

Accordingly, § 12406(3)’s predicate was not met on this record.

5) Tenth Amendment Considerations

Because Congress has constitutional authority to provide for calling forth the militia (U.S. Const. art. I, § 8, cl. 15), the Tenth Amendment question tracks whether § 12406’s predicates are satisfied. On this record they were not, making deployment over the state’s objection a likely violation of Illinois’s reserved sovereignty interests. The court gave particular weight to the proposed deployment of out-of-state Guard units (e.g., Texas) into Illinois, heightening the sovereignty injury.

6) Stay Factors: Balancing Equities and Public Interest

The administration failed to show a likelihood of success on the merits or irreparable harm absent a stay. By contrast, the state faced irreparable sovereign injury from unlawful deployment. The public interest favored avoiding unnecessary military presence in domestic policing. However, the court considered the harm from allowing temporary federalization (without deployment) relatively minimal at this stage and thus continued to stay the TRO’s bar on federalization while maintaining the bar on deployment.

Impact

Judicial Review Cemented: The decision solidifies that § 12406 invocations are reviewable and not committed to unreviewable presidential discretion. This aligns with the Ninth Circuit and sets the stage for consistent nationwide treatment unless the Supreme Court intervenes.
Meaningful Limitation on “Rebellion”: By clarifying that political protest—even disruptive and occasionally violent—is not a “rebellion” without organized violent resistance to governmental authority, the court places a high bar on using § 12406(2) to federalize and deploy Guard forces in response to domestic dissent.
Evidence Matters for “Inability”: Government messaging that enforcement is proceeding apace can undercut claims of inability under § 12406(3). Agencies invoking § 12406 must curate a consistent evidentiary record of actual impediment or incapacity—mere inconvenience or episodic disruption will not suffice.
State Sovereignty Emphasized: Deployment of federalized Guard into a state over the Governor’s objection, especially involving out-of-state Guard units, poses severe Tenth Amendment concerns that courts will treat as irreparable harm in equitable balancing.
Remedial Middle Path: The court’s interim remedy—allowing federalization while forbidding deployment—offers a pragmatic template in fast-moving crises, preserving federal command arrangements while preventing premature military use on the streets absent lawful predicates.
Convergence with, Yet Distinction from, the Ninth Circuit: The Seventh Circuit sidestepped resolving contested definitions of “unable” and “regular forces,” holding the government lost even under the Ninth Circuit’s more government-friendly readings. This minimizes circuit conflict for now but leaves doctrinal questions open.
Signals for Future Litigation: The opinion’s careful parsing of “rebellion” and “inability,” its reliance on objective, local-law-enforcement evidence, and its attention to agency press releases will inform both executive-branch decision-making and state litigation strategies in any future domestic deployments.

Complex Concepts Simplified

Federalization vs. Deployment:
- Federalization (Title 10 status): National Guard members come under federal command and become part of the U.S. armed forces. They are subject to federal law and restrictions (including the Posse Comitatus Act).
- Deployment: Actual use of those federalized forces for missions, here proposed for domestic protection of federal agents/facilities in Illinois.
10 U.S.C. § 12406 (Call of the National Guard into Federal Service): Authorizes presidential call-up of National Guard in limited circumstances—(1) invasion, (2) rebellion/danger thereof, (3) inability to execute federal laws with regular forces.
“Regular forces”: The statute’s phrase is debated. Some courts read it as including federal law enforcement officers; others as limited to the regular armed forces. The Seventh Circuit left the question open in this posture.
Posse Comitatus Act (18 U.S.C. § 1385): Generally prohibits the Army and Air Force (and by policy, the Navy and Marine Corps) from participating in civilian law enforcement absent express authorization (e.g., the Insurrection Act). When Guard members are federalized (Title 10), PCA constraints apply to them.
Tenth Amendment and State Sovereignty: Reserves general police powers to the states. While Congress can authorize federal call-ups of militia, deploying federalized troops for domestic law enforcement over a state’s objection without meeting statutory predicates implicates state sovereignty and can be enjoined.
Standards on Emergency Relief:
- Appealability of TROs: A TRO can be appealed if it has the practical features of a preliminary injunction (adversary hearing, thorough merits reasoning, etc.).
- Stay Pending Appeal: Requires showing likelihood of success and irreparable harm; court then balances harms and considers the public interest.
- Standards of Review: District court factfinding is reviewed for clear error; statutory interpretation is reviewed de novo; executive factfinding may receive deference, especially in national security contexts.
Insurrection Act vs. § 12406: The Insurrection Act (10 U.S.C. §§ 251–255) authorizes use of active-duty military in limited circumstances (e.g., suppression of insurrection, enforcement of federal law when impracticable through ordinary means). Section 12406 pertains specifically to calling the National Guard into federal service. This case concerns § 12406, not the Insurrection Act.

What the Court Did Not Decide

It did not set a definitive test for “unable” or “regular forces” under § 12406(3); it held the administration failed even under the more lenient interpretations.
It did not reach or resolve the Posse Comitatus claim, because the statutory predicates for federalization/deployment were dispositive at this stage.
It did not permanently enjoin federal control; it left Guard members under federal command but barred their deployment within Illinois during the appeal.
It did not foreclose future federalization or deployment should facts materially change to satisfy § 12406’s predicates.

Practical Guidance and Implications

For the Executive Branch:
- Build a consistent, evidence-based record of actual organized violent resistance (for § 12406(2)) or concrete, significant inability of federal forces to execute the laws (for § 12406(3)).
- Align public communications with legal positions; claims of enforcement “success” may undermine assertions of “inability.”
- Document unsuccessful reliance on federal officers and cooperative state/local measures before invoking military support.
For States and Localities:
- Establish unified command structures and document effective containment using civilian law enforcement.
- Preserve objective evidence (e.g., surveillance footage, incident logs) to counter claims of rebellion or inability.
- Emphasize sovereignty harms, especially where out-of-state federalized Guard units are slated for in-state deployment.
For Courts:
- Maintain deference to executive factfinding while rigorously enforcing statutory predicates.
- Use calibrated interim remedies (e.g., permitting federalization but enjoining deployment) to balance equities in fast-moving situations.

Conclusion

The Seventh Circuit’s decision sets an important marker on the limits of executive power to deploy military forces domestically under § 12406. It clarifies that courts will review whether statutory predicates are met; that “political opposition is not rebellion”; and that claims of enforcement incapacity must be grounded in demonstrable, not rhetorical, impediments. The court’s nuanced remedial approach—allowing federalization but barring deployment—protects state sovereignty while preserving federal command arrangements during ongoing litigation.

Going forward, the opinion will guide executive branch lawyers, state attorneys general, and district courts evaluating federal call-ups during periods of civil unrest. It underscores the judiciary’s role in policing the boundaries of statutory authority, even while according deference to the political branches in matters of national security. Most practically, it warns that deploying the National Guard into a state over its objection requires more than sporadic disorder; it requires evidence of organized violent resistance or an actual breakdown in the capacity of federal forces to execute federal law.