In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 25-2798 STATE OF ILLINOIS and the CITY OF CHICAGO, Plaintiffs-Appellees,
v.
DONALD J. TRUMP, et al., Defendants-Appellants. ____________________
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:25-cv-12174 — April M. Perry, Judge. ____________________
DECIDED OCTOBER 16, 2025 ____________________
Before ROVNER, HAMILTON, and ST. EVE, Circuit Judges. PER CURIAM. On October 4, 2025, President Donald Trump invoked his authority under 10 U.S.C. § 12406 to federalize and deploy members of the National Guard within Illinois, over the objection of the state’s Governor. He asserted that de- ploying the Guard in the state was necessary to quell violent assaults against federal immigration agents and property. The State of Illinois and the City of Chicago promptly sued 2 No. 25-2798
President Trump and members of his administration, arguing that none of the statutory predicates for federalizing the Guard under § 12406 had been met, and that the federaliza- tion also violated the Tenth Amendment and the Posse Comi- tatus Act, 18 U.S.C. § 1385. The district court granted plaintiffs’ request for a tempo- rary restraining order, enjoining the administration from fed- eralizing and deploying the Guard within Illinois. In the dis- trict court’s view of the factual record, neither of the predicate conditions for federalization proffered by the administration was present in Illinois: There was insufficient evidence of re- bellion or a danger of a rebellion, 10 U.S.C. § 12406(2), nor was there sufficient evidence that the President was unable with the regular forces to execute the laws of the United States, see id. § 12406(3). The administration immediately appealed and moved for a stay of the order pending appeal. Because we conclude that the district court’s factual find- ings at this preliminary stage were not clearly erroneous, and that the facts do not justify the President’s actions in Illinois under § 12406, even giving substantial deference to his asser- tions, we deny the administration’s motion for a stay pending appeal except to the extent we continue our stay of the portion of the order enjoining the federalization of the Guard. I A We draw our account from the district court’s factual find- ings in its opinion granting the temporary restraining order. On September 8, 2025, the Trump administration announced “Operation Midway Blitz”—an escalation of the administra- tion’s enforcement of the immigration laws in Illinois. Federal No. 25-2798 3
law enforcement officers increased their presence in the Chi- cagoland area. U.S. Immigration and Customs Enforcement (ICE) pro- cesses immigrant detainees at a facility in Broadview, Illinois, a village about twelve miles west of downtown Chicago. For the past nineteen years, protestors have engaged in small demonstrations outside the Broadview facility, including a weekly prayer vigil. But the protests grew in size and regular- ity following the commencement of Operation Midway Blitz. On some occasions, protestors have stood or sat down in the driveway leading to the Broadview facility, and ICE has phys- ically removed those people. The number of protestors on a typical day is fewer than 50. According to Broadview Police, the crowd has never exceeded 200, though the administration suggests it may once have reached around 300. Since Septem- ber 13, Broadview Police and the Illinois State Police (ISP) have set up surveillance cameras to record and monitor activ- ity in the area. On September 26, approximately 100 to 150 protestors gathered outside the Broadview facility, and ICE deployed pepper spray and tear gas. The Broadview Police Department requested assistance from Illinois’s law enforcement mutual aid network, and state police and other local police depart- ments sent six cars. The activity near the facility closed a nearby road for roughly five hours, but Illinois law enforce- ment was able to contain the scene. That same day, the De- partment of Homeland Security (DHS) requested from the Department of Defense 100 troops to protect ICE facilities in Illinois with “immediate and sustained assistance” because of a “coordinated assault” by unnamed “violent groups … 4 No. 25-2798
actively aligned with designated domestic terror organiza- tions.” Operation Midway Blitz soon intensified. On September 27, Gregory Bovino of Customs and Border Protection (CBP) and other federal agents came to the Broadview Police station and said that there would be increased deployment of chem- ical arms, and that it was “going to be a shitshow.” The same day, a federal officer requested that Illinois voluntarily send Illinois National Guard troops to protect federal personnel and property; the state declined. In turn, Illinois law enforcement stepped up its efforts in Broadview. On October 2, the ISP created a “Unified Com- mand” of state and local law enforcement and emergency re- sponse organizations to coordinate public safety measures at the DHS facility. On October 3, the ISP established designated protest areas. When some protestors attempted to approach federal personnel and property, state and local law enforce- ment maintained control, making five to seven arrests, and federal agents detained 12 people. On October 4, a few dozen protestors demonstrated at the facility. State and local law enforcement quickly responded and controlled the scene. DHS did not have to intervene. Also on October 4, the President invoked his authority to federalize the National Guard. He issued a memorandum stating that the “situation in the State of Illinois, particularly in and around the city of Chicago, cannot continue. Federal facilities in Illinois, including those directly supporting [ICE] and the Federal Protective Services (FPS), have come under coordinated assault by violent groups intent on obstructing Federal law enforcement activities… I have determined that No. 25-2798 5
these incidents, as well as the credible threat of continued vi- olence, impede the execution of the laws of the United States. I have further determined that the regular forces of the United States are not sufficient to ensure the laws of the United States are faithfully executed, including in Chicago.” The memo au- thorized the federalization of Illinois National Guard mem- bers under 10 U.S.C. § 12406 to “perform those protective ac- tivities that the Secretary of War determines are reasonably necessary to ensure the execution of Federal law in Illinois, and to protect Federal property in Illinois.” Illinois state officials opposed the deployment of the Na- tional Guard. The same day, the National Guard Bureau noti- fied the Adjutant General of the Illinois National Guard that the President had authorized the mobilization of at least 300 members of the Illinois National Guard and directed that Illi- nois mobilize the Guard under 32 U.S.C. § 502(f) within 2 hours, or the Secretary of Defense would do so under Title 10. The Adjutant General responded that Illinois Governor Pritz- ker would not call the National Guard into Title 32 status and objected to the federalization of the National Guard. Secretary of Defense Pete Hegseth then called Illinois Na- tional Guard members into federal service under 10 U.S.C. § 12406. In a memo to the Adjutant General, the Secretary stated that he was invoking § 12406 to federalize Guard troops to “protect [ICE], [FPS], and other U.S. Government personnel who are performing Federal functions, including the enforcement of Federal law, and to protect Federal prop- erty, at locations where violent demonstrations against these functions are occurring or are likely to occur based on current threat assessments and planned operations.” 6 No. 25-2798
The next day, Secretary Hegseth explained to the Adjutant General that the President was invoking § 12406 to federalize up to 400 National Guard troops from Texas and to deploy them in Illinois and Oregon because “violent incidents, as well as the credible threats of continued violence, are imped- ing the execution of the laws of the United States.” There were also a few dozen protestors at the ICE facility in Broadview that day, but state and local law enforcement maintained con- trol, and DHS did not need to intervene. That night, a leader at ICE’s Broadview facility lauded, in an internal email, the effectiveness of state and local law enforcement’s Unified Command. Despite President Trump’s federalization of Guard troops as necessary to enforce federal immigration law, DHS and ICE have touted the success of Operation Midway Blitz. In an October 3 press release, DHS stated that ICE and CBP have effected more than 1,000 immigration arrests since the start of the Operation. In a September 26 DHS press release, the De- partment declared that protests had not slowed ICE down, and, in fact, ICE has significantly increased its deportation and arrest numbers year over year. B On October 6, 2025, plaintiffs—the State of Illinois and the City of Chicago—filed this lawsuit, arguing that the Trump administration’s orders federalizing National Guard troops in Illinois under 10 U.S.C. § 12406 were unlawful. 10 U.S.C. § 12406 provides: Whenever—
(1) the United States, or any of the Com- monwealths or possessions, is invaded No. 25-2798 7
or is in danger of invasion by a foreign nation;
(2) there is a rebellion or danger of a re- bellion against the authority of the Gov- ernment of the United States; or
(3) the President is unable with the regu- lar 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 nec- essary to repel the invasion, suppress the rebel- lion, or execute those laws.
Plaintiffs argued that there is no rebellion or danger of re- bellion in Illinois, nor is the President unable with the regular forces to execute the laws of the United States. They further contended that the federalization orders violate the Posse Comitatus Act, 18 U.S.C. § 1385, and the Tenth Amendment. Plaintiffs sought emergency injunctive relief preventing the Trump administration from federalizing and deploying Na- tional Guard troops in Illinois. After holding a hearing and assessing the preliminary rec- ord, the court granted in part plaintiffs’ request for a tempo- rary restraining order and enjoined the federalization and de- ployment of the National Guard for 14 days. The court with- held judgment on a preliminary injunction and did not extend its order to non–National Guard military forces or the Presi- dent himself. The district court recognized the substantial def- erence due a President’s assessment of whether § 12406(2) 8 No. 25-2798
or (3)’s factual predicates are satisfied, but it concluded none- theless that, under its factual findings, the statutory require- ments were not met. Where the declarations of the admin- istration conflicted with the declarations of state and local law enforcement concerning conditions on the ground, the court made a credibility determination in plaintiffs’ favor. In partic- ular, the court found that all three of the federal government’s declarations from those with firsthand knowledge were unre- liable to the extent they omitted material information or were undermined by independent, objective evidence. The Trump administration promptly appealed. It also moved for a stay pending appeal and for an emergency ad- ministrative stay. We granted the motion for an administra- tive stay in part, allowing the Guard members in Illinois to remain under federal control but blocking their deployment while we considered the motion for a stay. II Before we reach the merits of the administration’s motion, we must assure ourselves that we have jurisdiction to review the district court’s temporary restraining order. Generally, a temporary restraining order is not appealable under 28 U.S.C. § 1292(a)(1). See Chi. United Indus., Ltd. v. City of Chicago, 445 F.3d 940, 943 (7th Cir. 2006). The Supreme Court has ex- plained, however, that when a temporary restraining order “carries many of the hallmarks of a preliminary injunction,” it should be construed as an appealable injunction. Dep’t of Educ. v. California, 604 U.S. 650, 651 (2025) (per curiam); see Abbott v. Perez, 585 U.S. 579, 594 (2018). Among these hall- marks are the issuance of an order after an “adversary hear- ing” and a “strong[] challenge[]” to the court’s basis for issu- ing an order. Sampson v. Murray, 415 U.S. 61, 87 (1974). No. 25-2798 9
We conclude that the order is appealable. The district court issued a thorough, 51-page written opinion after hold- ing an adversary hearing and receiving extensive factual sub- missions and briefing, and the administration has strongly challenged virtually every basis for the district court’s order. We are therefore satisfied that sufficient hallmarks of a pre- liminary injunction are present here such that we can review the order under § 1292(a)(1). III “In deciding whether to stay an injunction pending ap- peal, we apply a standard that parallels the preliminary in- junction standard but also keeps in mind the district court’s exercise of equitable discretion.” Camelot Banquet Rooms, Inc. v. U.S. Small Bus. Admin., 14 F.4th 624, 628 (7th Cir. 2021). Thus, a party seeking a stay must show (1) a likelihood of suc- cess on the merits, and (2) a threat of irreparable harm absent a stay. Id. If the moving party makes such a showing, this court must consider (3) “the balance of harms, primarily in terms of the balance of risks of irreparable harm in case of a judicial error,” as well as (4) the public interest. Id.; see Nken v. Holder, 556 U.S. 418, 434 (2009). Generally, in reviewing an in- junction, we take a fresh look at the legal issues but review the district court’s factual findings for clear error. Tully v. Okeson, 977 F.3d 608, 612 (7th Cir. 2020). The administration argues that the President’s federaliza- tion of the Guard under § 12406 is not judicially reviewable at all. Alternatively, it contends that the factual predicates of § 12406(2) and (3) are satisfied in light of the deference due the President’s decision to federalize the Guard. We conclude, at this preliminary stage and given the district court’s factual 10 No. 25-2798
findings, that the federal government does not appear likely to succeed on either argument. A The administration principally asserts that the President’s discretion to call up the National Guard simply is not judi- cially reviewable. This argument relies heavily on Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827). President Madison had in- voked a precursor to § 12406 to mobilize the New York militia during the War of 1812, which President Madison deemed an invasion. Jacob Mott refused to report for duty and was court- martialed and fined. Martin (a Marshal) seized his property to pay the fine and Mott sued Martin, contesting President Madison’s determination that there was an invasion permit- ting the federalization of the militia. The Court concluded that the determination whether an actual or imminent invasion had arisen was not “an open question, upon which every of- ficer … may decide for himself” but “belongs exclusively to the President, and that his decision is conclusive upon all other persons.” Id. at 29–30. The administration argues that those principles govern here, and that where, as here, a statute “commits [a] decision to the discretion of the President,” the President’s exercise of that discretion is not subject to judicial review. Dalton v. Specter, 511 U.S. 462, 474 (1994). We do not think the holding of Martin can extend so far. The Court’s broad language must be understood in its con- text. The Nation was then at war with the most powerful em- pire on earth. That empire had actually invaded the United States and was sacking its capital city in August 1814. The Court in Martin expressed incredulity at the prospect that every officer under the President’s command could make his own determination whether an imminent threat of invasion No. 25-2798 11
existed and could refuse to obey the President’s orders or be subject to civil liability if he enforced what was later deemed an invalid order. 25 U.S. at 29–30. Here, by contrast, the ques- tion is whether courts, not subordinate militiamen, may re- view the President’s determination under § 12406, primarily as to whether political protests have become violent to the ex- tent that they constitute a rebellion or that the administration is “unable” to execute federal law with the “regular forces” available to it. As the Ninth Circuit aptly noted, unlike in Dalton, “the statute here enumerates three predicate conditions for the President’s decision to call forth the National Guard.” New- som v. Trump, 141 F.4th 1032, 1047 (9th Cir. 2025). Nothing in the text of § 12406 makes the President the sole judge of whether these preconditions exist. It follows that the Presi- dent’s decision to federalize and deploy the National Guard under the statute is reviewable. See id. At this preliminary stage, then, we conclude the federal government is unlikely to prevail on its argument that Martin or Dalton foreclose all judicial review of the President’s deci- sion to federalize the National Guard under § 12406. B Though we reject the administration’s assertion that § 12406 instills the President with unreviewable discretion, we nevertheless agree with the Ninth Circuit that the Presi- dent should be granted “a great level of deference” on the question of whether one of the statutory predicates exists. Newsom, 141 F.4th at 1048. As the Supreme Court has recog- nized, “when it comes to collecting evidence and drawing fac- tual inferences” in the domain of national security and foreign 12 No. 25-2798
relations, “’the lack of competence on the part of the courts is marked,’ and respect for the Government’s conclusions is ap- propriate.” Holder v. Humanitarian L. Project, 561 U.S. 1, 34 (2010) (quoting Rostker v. Goldberg, 453 U.S. 57, 65 (1981)); cf. Sterling v. Constantin, 287 U.S. 378, 399–400 (1932) (holding that governor was allowed a “permitted range of honest judg- ment” in exercising discretion to call up state military forces while acting in “good faith,” but finding military deployment was in fact not justified and could not be “conclusively sup- ported by mere executive fiat”). Precisely how deferential the standard should be is a question we do not endeavor to re- solve at this early stage. Even giving great deference to the administration’s deter- minations, the district court’s contrary factual findings— which, at this expedited phase of the case, are necessarily pre- liminary and tentative—are not clearly erroneous. The sub- mitted evidence consists almost entirely of two sets of com- peting declarations describing the events in Broadview. The district court provided substantial and specific reasons for crediting the plaintiffs’ declarations over the administration’s, and the record includes ample support for that decision. Given the record support, the findings are not clearly errone- ous. See United States v. Nichols, 847 F.3d 851, 857 (7th Cir. 2017) (explaining that “where the district court’s factual find- ings are supported by the record, we will not disturb them” under clear-error review). Where neither the President nor the district court is enti- tled to deference is on the meaning of the statute—what con- stitutes a “rebellion,” and what it means to be “unable with the regular forces to execute the laws.” 10 U.S.C. § 12406. These determinations are matters of statutory interpretation, No. 25-2798 13
a function that is “precisely the business of the judiciary.” Seg- german Farms, Inc. v. Comm’r, 308 F.3d 803, 806 (7th Cir. 2002); see generally Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024). Our interpretation of the statute is de novo even on a motion for a stay. See Tully, 977 F.3d at 612. At this stage, we cannot say the administration is likely to succeed in demonstrating that the President lawfully federal- ized the Guard under either § 12406(2) or § 12406(3). † We start with § 12406(2) and the meaning of “rebellion or danger of a rebellion.” The parties rely on the same dictionar- ies, from the late nineteenth and early twentieth centuries, with the administration arguing that “rebellion” should be read to mean “deliberate resistance to the government’s laws and authority.” Plaintiffs instead urge us to define rebellion more narrowly—as the district court did—as a violent, armed, organized, open and avowed resistance that is “against the government as a whole—often with the aim of overthrowing the government—rather than in opposition to a single law or issue.” Newsom v. Trump, 786 F. Supp. 3d 1235, 1252–53 (N.D. Cal.), stayed pending appeal on other grounds, 141 F.4th 1032 (9th Cir. 2025) (citing Rebellion, Black’s Law Diction- ary (1st ed. 1891); Rebellion, American Dictionary of the English Language (1900); Rebellion, The Cyclopedic Dictionary of Law
† We acknowledge that President Trump has made many statements
suggesting that the Guard should fight crime in Chicago generally, but the federal government confines its argument to the use of subsections (2) and (3) of § 12406 based on an inability to execute immigration laws, as opposed to general criminal laws. At this preliminary stage, and given the press of time, we therefore limit our analysis to those arguments for fed- eralizing and deploying the Guard. 14 No. 25-2798
(1901); and Rebellion, Webster’s International Dictionary of the English Language (1903)). Although we substantially agree with the definition of re- bellion set forth by the district court in Newsom, we emphasize that the critical analysis of a “rebellion” centers on the nature of the resistance to governmental authority. Political opposi- tion is not rebellion. A protest does not become a rebellion merely because the protestors advocate for myriad legal or policy changes, are well organized, call for significant changes to the structure of the U.S. government, use civil disobedience as a form of protest, or exercise their Second Amendment right to carry firearms as the law currently allows. Nor does a protest become a rebellion merely because of sporadic and isolated incidents of unlawful activity or even violence com- mitted by rogue participants in the protest. Such conduct ex- ceeds the scope of the First Amendment, of course, and law enforcement has apprehended the perpetrators accordingly. But because rebellions at least use deliberate, organized vio- lence to resist governmental authority, the problematic inci- dents in this record clearly fall within the considerable day- light between protected speech and rebellion. Applying our tentative understanding of “rebellion” to the district court’s factual findings, and even after affording great deference to the President’s evaluation of the circum- stances, we see insufficient evidence of a rebellion or danger of rebellion in Illinois. The spirited, sustained, and occasion- ally violent actions of demonstrators in protest of the federal government’s immigration policies and actions, without more, does not give rise to a danger of rebellion against the government’s authority. The administration thus has not demonstrated that it is likely to succeed on this issue. No. 25-2798 15
We turn next to the meaning of § 12406(3)—“unable with the regular forces to execute the laws of the United States.” The administration exhorts us to accept the Ninth Circuit’s reading of this subsection. In Newsom, the Ninth Circuit inter- preted “unable” to mean that the federal government was “significantly impeded,” and “regular forces” to mean “fed- eral officers.” 141 F.4th at 1052. The district court in this case, by contrast, concluded that the definition of “unable” is “not having sufficient power or ability; being incapable.” And it determined that “regular forces” means the soldiers and of- ficers serving in the regular armed forces. We need not fully resolve these thorny and complex issues of statutory interpretation now, because we conclude that the administration has not met its burden under either standard. Even applying great deference to the administration’s view of the facts, under the facts as found by the district court, there is insufficient evidence that protest activity in Illinois has sig- nificantly impeded the ability of federal officers to execute federal immigration laws. Federal facilities, including the pro- cessing facility in Broadview, have remained open despite regular demonstrations against the administration’s immi- gration policies. And though federal officers have encoun- tered sporadic disruptions, they have been quickly contained by local, state, and federal authorities. At the same time, im- migration arrests and deportations have proceeded apace in Illinois over the past year, and the administration has been proclaiming the success of its current efforts to enforce immi- gration laws in the Chicago area. The administration accord- ingly is also unlikely to succeed on this argument. Both sides seem to agree that the Tenth Amendment ques- tion rises and falls with the statutory claim. The Tenth 16 No. 25-2798
Amendment provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the peo- ple.” U.S. Const. amend. X. These reserved powers include “the police power, which the Founders denied the National Government and reposed in the States.” United States v. Mor- rison, 529 U.S. 598, 617–18 (2000). Because there are constitu- tionally recognized grounds for the federalization of the Na- tional Guard, see U.S. Const., art. I, § 8, cl. 15, the success of the Tenth Amendment claim is tied to the success of plaintiffs’ claim that the President’s invocation of § 12406 was unlawful. And because, in our preliminary assessment, the federal gov- ernment does not appear likely to succeed on its argument that it satisfied § 12406, it does not appear likely to succeed in showing the Tenth Amendment permits the deployment of the Guard. C Having concluded that the administration has not shown a likelihood of success on the merits at this early stage, we evaluate the remaining stay factors, which we conclude also weigh against a stay of the district court’s order with respect to deployment. We recognize, as the Ninth Circuit did, that the federal government has a strong interest in the protection of its agents and property. Newsom, 141 F.4th at 1054. But given the district court’s well-supported view of the record, the federal government has been able to protect federal prop- erty and personnel without the National Guard’s help. By contrast, the administration’s likely violation of Illinois’s Tenth Amendment rights by deploying Guard troops in the state over the state’s objection “constitutes proof of an irrepa- rable harm.” Preston v. Thompson, 589 F.2d 300, 303 n.3 (7th No. 25-2798 17
Cir. 1978). And the deployment of National Guard members from Texas—an incursion on Illinois’s sovereignty—makes the constitutional injury especially significant. The balance of harms thus weighs in plaintiffs’ favor regarding the deploy- ment of the Guard. On the other hand, we conclude that the harm to plaintiffs of permitting Guard troops to remain temporarily under fed- eral control, without deploying, as this case further pro- gresses appears to be relatively minimal. (We acknowledge, however, that circumstances might arise that could increase plaintiffs’ potential harm, including if Illinois needs its Guard members who have been commandeered by the federal gov- ernment to assist with state matters.) Lastly, as the district court properly determined, the public has a significant inter- est in having only well-trained law enforcement officers de- ployed in their communities and avoiding unnecessary shows of military force in their neighborhoods, except when abso- lutely necessary and justified by law. IV We reiterate that, because of the procedural posture of this appeal, our conclusions are preliminary and based on our re- view of the limited record before the district court. The issues presented are necessarily fact bound, and it is possible that events could transpire that satisfy one of § 12406’s factual predicates. But even with the benefit of considerable defer- ence to its judgments, the administration has not shown that is true today. Because we conclude that the factors weigh against a stay of the deployment order pending appeal, IT IS ORDERED that the motion to stay pending appeal is GRANTED in part 18 No. 25-2798
and DENIED in part. We continue to STAY the district court’s October 9, 2025, order only to the extent it enjoined the feder- alization of the National Guard within the state. The admin- istration remains barred from deploying the National Guard of the United States within Illinois.