Trump Vs Illinois: National Guard, Posse Comitatus, & The Limits Of Presidential Power With Richard Wilson

This is another outstanding podcast with Richard Wilson, who is a trial lawyer, and provided the legal perspective. Dr. Jackalyn Rainosek continues through Hot Topic by Dr. Jackalyn to educate her listeners what is going on. We all need to know the facts and the rule of law that disputes the actions by Trump and ICE.

Richard Wilson and Dr. Jackalyn wants to start this podcast with this question: What happens when a President says: “My federal officers can’t do their jobs—so I’m federalizing the National Guard”… and a state says: “Not here. Not like this.”

Podcast 161 dives into Trump v. Illinois (Dec. 23, 2025)—a fast-moving Supreme Court stay fight triggered by clashes around federal immigration enforcement in and around Chicago. The federal government argued that federal officers faced escalating obstruction and violence, and that the President therefore had authority to federalize and deploy National Guard troops under 10 U.S.C. §12406(3)—a statute that allows the President to call the Guard into federal service when he is “unable with the regular forces to execute the laws of the United States.”

Illinois sued, and here’s the key procedural point many people miss: this was not the full case on the merits. The Trump Administration asked the Supreme Court for a stay—basically, “pause the lower court’s restriction so we can deploy while the case continues.” The Court denied that request, meaning the lower court limits stayed in place for now.

So what did the lower courts do?

• The Northern District of Illinois entered a temporary restraining order blocking the federalization/deployment.
• The Seventh Circuit allowed the Guard to remain federalized within Illinois, but kept the bar on deployment (so: “federalized, yes; deployed into the streets, no”).

Then the Supreme Court stepped in—and the fireworks are in the reasoning.

The legal flashpoint: “regular forces” + Posse Comitatus

The majority focused on a deceptively simple phrase: “regular forces.” The Court said it likely means the regular U.S. military, not civilian federal law enforcement. That matters because §12406(3) only kicks in if the President is “unable” to execute the laws with those regular forces.

And that interpretation drags in the Posse Comitatus Act (18 U.S.C. §1385)—the long-standing rule that generally bars the armed forces from acting as domestic law enforcement unless the Constitution or Congress clearly authorizes it.

So the majority’s bottom line—at least at this early stage—was: the government hadn’t shown the kind of legal authority needed to treat “execute the laws” as something the (regular) military could lawfully do in Illinois under this pathway.

Why Kavanaugh’s Concurrence Feels Different

Justice Kavanaugh agreed with denying the stay, but said: do it narrowly. His view (as you noticed) is more procedural and restrained: on the record presented, it didn’t look like the President had made the specific statutory determination required if “regular forces” means the U.S. military—so deny the stay without trying to decide bigger constitutional landmines on an emergency application.

Why This Matters Right Now (And Why Listeners Should Care)

This case isn’t “law nerd trivia.” It’s a live-wire question about how a President might respond to resistance against federal immigration enforcement—and what legal levers exist (or don’t) when a state refuses cooperation. It also tees up the broader menu of domestic-force tools people keep hearing about—like the Insurrection Act—and why those words (and the definitions behind them) could shape what happens next in places like Minnesota when tensions around ICE operations spike.

If you want to understand the real stakes—what “protecting federal property” means versus “policing,” what laws actually constrain a President, and how quickly a “temporary” emergency move can become a precedent—this episode is your roadmap.

Episode Summary Points:

• Understanding the Legal Framework: The Shadow Docket & Martial Law
  • The Shadow Docket: Attorney Richard Wilson explains that the Supreme Court’s order in Trump v. Illinois came via the “shadow docket”—orders issued without a formal, signed opinion or oral argument, which can still have a substantial legal impact.
  • Posse Comitatus Act: Wilson details this 1878 federal law (18 USC 1385), which makes it a crime to use the regular military (Army, Navy, Air Force, etc.) to execute domestic laws unless expressly authorized by Congress.
  • The National Guard Loophole: The White House attempted to use the National Guard to assist ICE to bypass Posse Comitatus, as the Guard is typically under state control and not subject to the same federal restrictions as the regular military.
• Case Study: Case Study: Trump v. Illinois
  • Defining “Regular Forces”: The Supreme Court ruled that the term “regular forces” in federal statutes specifically means the United States military. Because ICE personnel are civil servants and not military members, the President cannot mobilize the National Guard to assist them in a domestic “immigration crackdown.”
  • The Insurrection Act Threat: Wilson warns that the administration may next attempt to use the Insurrection Act of 1807 ($10\text{ USC }333$), a 200-year-old law that gives the President broad subjective power to deploy active-duty troops to suppress “domestic violence” or “conspiracies” that obstruct federal law
  • Jurisdictional Resistance: The case highlights a growing conflict between the Executive branch and “Blue States” (like Illinois and Minnesota), where governors resist federalizing their local National Guard for civil enforcement.

• Law Enforcement vs. Military Engagement
  • Rules of Engagement vs. Enforcement: Wilson notes a critical danger in deploying active military for police work: soldiers are trained to “neutralize threats” using deadly force, whereas police are trained to “keep the peace” and make arrests.
  • The Credibility Gap: The discussion highlights how district courts have begun questioning the credibility of ICE declarations. While the White House labeled certain individuals “domestic terrorists,” video evidence often showed civilians simply attempting to assist others during pepper-spray incidents.
  • Shifting Judicial Guardrails: Despite a conservative majority, Wilson observes that six justices (including Roberts, Barrett, and Kavanaugh) appear to be establishing “guardrails” to prevent the executive branch from overstepping constitutional bounds regarding domestic searches, seizures, and military use.

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Trump Vs Illinois: National Guard, Posse Comitatus, & The Limits Of Presidential Power With Richard Wilson

I have the privilege of having Richard Wilson on with me monthly, which I am so glad about because he is going to describe the legal aspects of a very interesting case, Trump v. Illinois. What is fascinating about it is that you, as the audience, are going to have a chance to fully understand what the legal issues are that prevent Trump from taking some actions. I will leave it at that because Richard has the best story. Richard, I am going to turn it over to you, and then if I interrupt you and ask a question, you will understand.

The “Shadow Docket” & The Illinois National Guard

What we’re discussing is an order that was entered by the United States Supreme Court in December in the pending case, Trump v. Illinois. What happened was that the court entered an order. It is not like a normal opinion where you have the justices signing on in different places. The order that has effect, we have no idea who wrote it. This is part of what Supreme Court practitioners refer to as the shadow docket.

What I mean by that is the orders that the court issues without reaching a formal opinion, often which happen while a case is pending, and that is what happened here, are such that they can have a very substantial legal effect, even though the order may simply be a sentence or two. Now with Trump v. Illinois, we do not have that. We have four different opinions. It covers 25 pages, and it deals specifically with the actions of President Trump to call up the Illinois National Guard and the Texas National Guard to assist Immigration and Customs Enforcement officers with their efforts to enforce the law in Chicago, Illinois.

This was the immigration crackdown we had before what has recently happened in Minneapolis. The White House relied on a statute that exists, a federal law that allows the president to use the National Guard when he is unable, with regular forces, to execute the laws of the United States. The President relied on that statute and mobilized the National Guard, intending to send the National Guard into Chicago to assist Immigration and Customs Enforcement.

Posse Comitatus Vs. The National Guard

The order by the court was a preliminary order and was really only two pages long. The order that had an effect was very brief. What the court said is that regular forces in this statute means the army. It does not mean any federal employees. Because Immigration and Customs Enforcement personnel were not part of the regular military, I said the army, but I mean the regular military, the president could not send the National Guard into Chicago to aid them in enforcing the laws at this time. Some of the questions that people may have are, “If the president can use the regular military to do this, then why not just use the National Guard instead?”

One of the reasons behind that, I am not going to claim that I can crawl into that man’s head and tell you what he is thinking, but one of the practical reasons why one might attempt to use the National Guard as opposed to the Army or the Marines is an existing federal criminal law. You have probably heard the term on the news, but the name of the law is Posse Comitatus. It is a criminal statute, 18 USC § 1385. What that statute provides is that it is a crime to use the military, and it specifically reads the Army, the Navy, the Marine Corps, the Air Force, or the Space Force, as a posse comitatus to execute the laws of the United States unless expressly authorized by the Constitution or an act of Congress.

Essentially, it makes it illegal to mobilize the military and use them as a posse to enforce the laws in the United States, unless there is a statute that allows you to do so. By mobilizing the National Guard to attempt to do this, presumably the intention was to avoid that criminal statute because that criminal statute does not apply to the National Guard. It only applies to the Army, Navy, Air Force, Marines, and Space Force.

Gubernatorial Authority & Political Tension

Let me pause here for a minute and just ask a question before we go on, because you are going to get into the details of it. My understanding is that the governor of a state calls out the National Guard. Only the Governor. This has happened in California, it has happened in Oregon, it has happened in Illinois, it was being threatened, and it certainly created a horrific mess in Minneapolis. What I do not understand is that we have a criminal law that you have just talked about.

You cannot get a posse of our Army or Marines to come in and take over. Yet that is what happened in California. The military came in, and it created a horrific mess. For a moment, and you may be going to be talking about this in your discussion with this case, it seems to me that it’s almost like a minimization of governors of Democratic states, because that is where it is all happening. There is a political thing behind it.

We do not have to talk about the political thing, or you can make some comments about it if you want to. I do think we need to understand the whole legal aspect because, to me, the only way he could bring in the military is for Congress to approve it. There has been no talk with Congress. There has been no action. I am going to put that all out there, and I will leave you to make your intelligent legal comments so that all of us can have a better understanding of who is tuning in.

I do not know that the comments will be intelligent, but I’ll give it a shot. First off, with regard to your question about only the governors of particular states can activate their National Guard, there are federal laws on the books that allow the federal government to activate the National Guard and to call Guard troops into active service. More often, you would see it in a circumstance where the country is at war, and Guard troops might be called up to assist the regular military with the war in Iraq or the war in Afghanistan when those were taking place.

The president can call up the National Guard. Typically, the Guard is called up by the governors of the states, and typically, that is the way it is done. If you were to look at the statute I was talking about earlier, it refers to the governors of the states or the District of Columbia, in that case, acting through them to call up the National Guard. You have got that factor. The second thing is in relation to the regular military, and using the regular military, there are statutes, and we will get to those as we move further in the discussion, that would allow the president to use the regular military in some circumstances.

This is another term that many of your audience may have heard used recently. I know the president has bandied the phrase about the statute or group of statutes referred to as the Insurrection Act, which allows the president to call the military up under certain circumstances. The last case I can think of where that happened was in 1992 during the Rodney King riots. When that was happening, you had circumstances where, as I understand it, the LA sheriffs and police department were afraid to go into South Central LA, and you had active military that was used to enforce the law there in that limited circumstance.

I will tell you that the Insurrection Act, in particular, is rarely used. Now, with Trump v. Illinois, the opinion that the majority of the justices joined into goes into the fact that 300 members of the Illinois National Guard were called into active federal service, and the intent was to bring them to Chicago to assist Immigration and Customs Enforcement with executing the laws of the United States. The Texas National Guard was also federalized. What happened there was that Illinois said, “We want to keep the president from doing this.”

The district court agreed with the state of Illinois. The Seventh Circuit also agreed with the state of Illinois and the district court and said that the district court stayed the president from sending the National Guard into Chicago. The Seventh Circuit affirmed that decision by the district court in large part. The government petitioned the Supreme Court to see if the Supreme Court would weigh in on this and lift the stay of the injunction entered by the district court.

Defining “Regular Forces” & Statutory Interpretation

While we will not get into it in great detail, there have been cases since Trump came into office in 2025 where the Supreme Court has greatly curtailed the ability of district courts to use injunctions to prevent the federal government from performing certain actions. What happened here is the Supreme Court asked the parties, “What does the term regular forces mean in that particular statute?” The government was arguing that regular forces included Immigration and Customs Enforcement. After being asked to brief the issue, the state, for the first time at the Supreme Court, says, “Regular forces only means the United States military.”

That is what the Supreme Court said they believe the statute means, or the majority of the justices said they believe the statute means that regular forces involve circumstances where the president cannot, with the regular military, the active service military, execute the laws of the United States. What does that mean? That means the president has a circumstance where the army is called up, but the members of the army who can get to that location expediently are not enough to enforce the laws.

The president, in addition to the Army, the Navy, or the Marines, calls up a local National Guard unit as well to have the appropriate number of people. That is how at least five of the justices read this. There was also a concurring opinion by Justice Brett Kavanaugh because the majority order also touched upon another issue where the federal government, the White House, or the executive branch was arguing, “Wait a second, the president can use the National Guard under Article II, and in doing so, he is not executing the laws of the United States because he is relying upon the Constitution.”

It really is in conflict with the dissent by Justices Alito and Thomas. What the majority order says, “If that interpretation is correct, it is hard to see how performing the functions the White House wants to perform would constitute executing the laws of the United States under the particular statute.” Essentially, what the majority said was, “If that is the way you are going to read it in this alternative argument, you cannot rely on the statute you are relying on.”

The long and short of it is that the White House cannot use the National Guard to assist Immigration and Customs Enforcement in Chicago. While this is an order and a pending case, it is not a final opinion. The effect it has is that if the White House were to attempt to activate the National Guard for the same purpose in other states, it would be faced with the same barrier. I say that with the president. My understanding is that Tim Walz, the governor of Minnesota, executed the National Guard in Minneapolis.

My understanding is that what the Guard has been doing there is far different from what ICE has been doing. The Guard is basically keeping the protesters at a safe distance. I heard from someone that they were offering Mylar blankets and hot chocolate to some of the protesters. Again, far different from pepper-spraying people on the other side of the street, which is what we’ve been seeing on the news. The long and short of it is that the majority of the members of the Supreme Court said, “You cannot do this.”

I say a majority because there is a lengthy dissent by Justice Alito in which Justice Thomas joins, and I am still having trouble grasping the mental gymnastics of the dissent. I do not understand how its arguments relate to the order issued by a majority of the court. There is also a dissent by Justice Gorsuch in which he basically says, “Look, you’ve engaged in interpreting this statute at this preliminary stage. We should hold off on doing that.

If we’re going to hold off on doing that, we shouldn’t allow the district court to interpret the statute for the purpose of entering an injunction.” My response to that would be, “If you are really going to engage in that level of abeyance or holding off on doing things, when is an injunction ever going to be appropriate, since injunctions are always issued under interpretations of existing laws?” Some unusual opinions on multiple levels.

I mentioned there was a concurring opinion by Justice Kavanaugh where he says, “I agree that regular forces should only be active military.” You should have stopped there. Again, what the majority order does is it says, “If the White House’s interpretation of enforcing the laws is correct, then you cannot rely on this statute.”

Kavanaugh goes into this hypothetical about what if people were storming a courthouse in Philadelphia, and you could not get active military there? You should be able to activate the National Guard to protect the federal courthouse in Philadelphia. I would point out that there is a mental fallacy with that hypothetical. It is one that you’ve touched upon when we started, but that is ordinarily how the governor activates the National Guard.

Kavanaugh’s premise is a false premise. If you really had people storming the courthouse in Philadelphia, then the governor, Shapiro, could activate the National Guard to keep the peace around the courthouse in Philadelphia. That is not a power that exists exclusively with the President of the United States, even if it is a federal property we’re talking about.

Another thing that really bothers me about all this. One of the things I am thinking about is that it is really questionable what ICE is doing, and the violence ICE is bringing into the communities. We now have two people who have been killed in Minnesota. One of the irritating things is that thank God we have news that is going to bring out and investigate what is going on, so we will get the truth, because it seems that the Justice Department only says, “We did the right thing because he had a gun.”

There is no indication that he ever used the gun. Not only that, there are lots of questions about the reason he was shot, the last individual. What is so important about this case is that I am glad five of the justices said, “Wait a minute. This should be only the military.” From what I can read, ICE or border patrol are not considered to be a part of this military that they think should take the action.

I am questioning and saying, what it sounds like to me that ICE does not have near the power that Trump has given them to go in and take people off the street and to do all kinds of things, because it does not seem to fit with the Constitution. It does not seem to fit with the acts you’re talking about or the orders you’re talking about. Correct me or let me know where we can go from here, because that is another major issue.

Initially, let me point out that Immigration and Customs Enforcement is not the military. This order is limited to just keeping the National Guard from coming in and joining Immigration and Customs Enforcement officials in the conduct they’ve engaged in. If you will grant me some leeway in about 10 or 15 minutes, I’ll get to why I think that might not be the best thing. Since you mentioned it, there are a couple of things I want to touch on, going back to the dissent by Justice Alito.

One of the arguments the dissent relies upon is something called party presentation. They say the court should not have interpreted this statute because neither the state of Illinois nor the White House was questioning the meaning of exactly what regular forces means. The legal term is party presentation. What Alito and Thomas said in their primary argument was, “If the parties did not present this issue to us, then we really should not be taking it up now on our own.” I would say that this is a rather disingenuous argument by these two justices for this reason.

In Dobbs, a case we have not discussed, it was not the state of Mississippi that questioned the continuing legality of Roe v. Wade. It was the Supreme Court that asked for additional briefing on it. With one case you and I have discussed, the Callais case out of Louisiana, the state of Louisiana did not argue that Section 2 of the Voting Rights Act was unconstitutional because it relies upon race and violation of the Equal Protection Clause and the due process clauses in the 14th and 15th Amendments. It was the Supreme Court that asked for additional briefing on that issue. I really consider that argument by these two justices to be bullshit.

I am glad to hear that because I could not even understand it.

Judicial Skepticism Of ICE Declarations

That is a very particular legal term. I do not think you need to explain it. The other thing that comes into it, and this is where I’ll touch on and return to the point you’re raising, is Alito and Thomas questioned the decision of the district court in a very lengthy opinion to question the credibility and disregard declarations that were provided to it by members of Immigration and Customs Enforcement talking about just how bad things were in Chicago and what was going on there.

From a legal standpoint, the district court is closest to the action. That is the court that sees the witnesses that come before it. Even if it has not seen them as they give the testimony in their declarations, it will have occasion to see what’s going on in the streets in Chicago, where that court sits. Legally, the appellate courts will not delve into and will not question credibility determinations by the district court unless they find that the court’s decisions were clearly erroneous.

Alito and Thomas, in questioning the district court’s decisions to disregard or pay short shrift to some of the Immigration and Customs Enforcement affidavits, really seem to be going against that longstanding legal precedent by saying, “Wait a second, there was a mountain of evidence about why Immigration and Customs Enforcement needed that.” To bring that back to what you were talking about with Minneapolis, we have heard with each of these shootings how immediately you have declarations by Homeland Security and the White House about how these people are domestic terrorists.

When we see the video, or how the ICE officers were in fear for their lives because the person was brandishing a gun, and then we see clear video from multiple angles where the person was not a domestic terrorist. He was trying to assist a woman in getting up off the sidewalk after she had been pepper-sprayed and pushed by ICE officers.

When he was taken down, a member of ICE disarmed him before he was shot multiple times. What has played out in Minneapolis post this order being issued really brings into effect why it was valid for the district court to question the credibility of these declarations. Earlier this week, Jake Tapper had opposed the guy Bovino, who was recently relieved of his duties in Minneapolis, who said he had never lied.

[bctt tweet=”This White House seems to show the insecurities in mental reasoning of an eight-year-old.” via=”no”]

Tapper, as he put it, had the receipts and brought up multiple incidents where Bovino had lied to the district courts in Chicago when he was there doing some of the same things that had been going on in Minneapolis. It troubles me that the dissent relies upon the declarations of the ICE officers to say that the majority order got it wrong, without regard to the lengthy analysis by the district court explaining why those declarations should not be given the level of consideration that the dissent clearly tries to give them.

Let me just say one thing. I read Alito’s dissent. Number one, he jumps off everywhere. There are multiple lists of cases he lists. The way it is written, I have seen court cases many times because I thought about it. Instead of getting a PhD, I would go to law school. I have seen many cases in my lifetime, and there is no organizational focus or presence in the dissent that gives any credibility to it. What I think is sad is that Thomas and Alito seem to, anytime Trump does anything, support it, no matter what it is, and then they’ll try to build a case with it.

What I do value is that I do not mind Kavanaugh concurring and then giving some more thought to things, but I think there is no substance to what Alito wrote. I support what you’re saying. What is going to be the next step? I know now Trump is under tremendous pressure by the Republicans in Congress, because there is 72% of America, I have read in articles, that think ICE has gone way too far. It is totally unacceptable. We do not kill our own citizens who are simply trying to have the right to speak their opinion. I do not know where you want to go with this case, but those are some of the thoughts I would throw out.

I hope what we’ve seen in the past two days will be what happens going forward, that cooler heads will prevail. I fear, based upon prior history, that is not going to be the case. The White House, both in its first term and for the first year of its second term, seems to show the insecurities and mental reasoning of an eight-year-old. Eventually, when people start questioning the strength of this White House or saying that it is finally acknowledging that it got something wrong, what I fear is going to happen is it will just double down.

Many of the decisions that have taken place in the past couple of days have raised questions about whether Kristi Noem will be impeached, sending Bovino back to border control in Southern California. Were largely done to quiet Republican senators and members of Congress who were starting to openly express their reservations about what’s going on. At the same time, I anticipate that the reason Bovino and Noem were doing the things they were doing is that if they were not directly told by the White House that this is what should be done, the implication was that this is what the White House wanted.

The Threat Of The Insurrection Act

What I am concerned about is that the White House tried to massage things and use the National Guard to avoid the effect of Posse Comitatus. What I am afraid is going to happen next is something like this will flare up in the next blue state, a state where the governors are not going to openly say “Yes, sir” to the orders coming down from the White House. My concern is that in the next instance, the president is going to go ahead and use what’s referred to as the Insurrection Act.

Specifically, there’s a statute 10 USC § 333, which allows the president, by using militia or armed forces or both, to take measure she considers necessary to suppress in a state any insurrection, domestic violence, unlawful combination, or conspiracy that opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

What I fear will happen is the White House is going to send active military into the next state under the Insurrection Act saying that the actions being taken against Immigration and Customs Enforcement involve domestic violence or some unlawful combination, and that those actions oppose the efforts of Immigration and Customs Enforcement to execute the laws of United States in taking possession of illegal immigrants and turning them over to be processed for deportation.

The reason this concerns me is while we have the greatest military in the world, and I will pay heed to multiple people, many of them in the military, but amongst legal scholars, Steve Vladeck, who is a professor of law at Georgetown has pointed out in one of his writings on One First, which I highly recommend to your audience, that when people are trained in the military, in the Army or the Navy or the Marine, they’re trained under what are called rules of engagement.

They are not trained and instructed on how to keep the peace, enforce the laws, and make arrests. They are trained to view the situation, perceive a threat, and neutralize that threat. Neutralizing that threat, as they are trained, does not mean putting the person in cuffs and arresting them. It means using deadly force quite often. Quite simply, under the Insurrection Act, the idea is I send active military in to assist Immigration and Customs Enforcement in enforcing the laws they’re supposed to be enforcing.

[bctt tweet=”Members of the military are not trained and instructed on how to keep the peace and enforce the laws and make arrests. They are trained to view the situation, perceive a threat, and neutralize that threat.” via=”no”]

Basically, I make members of the army additional Immigration and Customs Enforcement employees. The problem is that members of the active military are not trained the same way that one would expect law enforcement officers to be trained. They’re not dealing with the enforcement of the laws. They’re dealing with engagement with potentially deadly enemies. Essentially, you’re using a sledgehammer where a scalpel is the appropriate tool.

I am going to speculate here, but my understanding is that you’ve had a lot of people signing up to join ICE because of the big bonus checks. To get those people out on the street in a hurry, ICE has limited the amount of training. If you meet certain prerequisites, the amount of additional training required is even less. You could be on the street in a couple of weeks.

It would not shock me if what is happening here, we do not know the identities of the ICE officers that shot Mr. Pretti, but what we see in the video is they’re on one side of the street and then they cross the street to engage with protesters that are filming them on cell phones, which I do not see as being a violation of any law. What those individuals did involved rules of engagement, not rules of enforcement. It would not shock me if what we have are former members of the active military who have no idea how to enforce immigration laws that have caused these problems to begin with. That is just me engaging in rank speculation.

I do not think it is speculation because when you and I talked, and I wrote a great deal about his use of military forces in California, that is exactly what happened. What I know is that the military is trained to deal with individuals or groups that are truly creating a deadly force for the United States. When we look at things that have happened in Iraq or in other countries where we’ve been at war, it is because we have been threatened in such a way that war was declared.

What I think is a concern for me is that I do not think the Constitution or the rule of law has established what Trump is doing as a very highly aggressive, action-oriented process of pulling people off the street, never giving them due process, all those other things. I do not think any of the ICE actions at this point are legal or under the rule of law. I believe, and I do not know if people know this, that Obama sent more people and deported more people than any president prior to this.

He deported more people than Trump has ever even thought about deporting. You can look at the records of that. What I think is sad is that we, as Americans, have to understand that these protests have to continue, and we have to start electing people who will support the rule of law and understand that the actions Trump’s ICE is taking are not supported by any rule of law that we have. I know for a fact that during Obama’s time, ICE did investigate, did go through the court system, and took all the actions necessary to deport a number of people. I’ll back off now on your turn.

Trump v. Illinois does not deal with that larger question of the legality of ICE. I am sure we will see that at some point. A lot of discussion last week and this week has involved the use of administrative warrants where ICE is entering the residences of people based upon a document signed by another employee within Immigration and Customs Enforcement, and not a federal judge.

I would point out, as a starting point, when that issue gets litigated, that the Fourth Amendment concerning unreasonable searches and seizures reads “The right of the people to be secure in their persons, houses, papers, and effects.” It is not limited to citizens. It applies to people, which would include non-citizens. It would include people the White House chooses to classify as illegal aliens. They are still people.

[bctt tweet=”The Fourth Amendment reads ‘the right of the people to be secure in their persons, houses, papers, and effects.’ It is not limited to citizens, it applies to people.” via=”no”]

The breadth of the Fourth Amendment, based upon existing Supreme Court precedent, would suggest to me that yes, some of the things ICE is doing run afoul of the Fourth Amendment. Again, getting back to it, my concern is that this is not going to stop until, and even then. In Chicago, ICE continued to do things after the district court in Chicago was ordering them not to do those things, which is why several members of ICE were called onto the carpet and were the subject of show-cause orders by the federal judge in Chicago.

We’re seeing similar things happen in Minneapolis right now. Courts are entering orders, and the response of ICE is basically “We’re going to do what we want anyway.” Based on what the US Supreme Court has done previously, the problem is that we cannot have a nationwide injunction to prevent this conduct, not that ICE has been obeying the injunctions that have been issued to date, because the Supreme Court says the injunctions have to be limited to the parties of that case. They have really hamstrung the ability of local courts to do their jobs when you have an executive branch engaging in conduct like this. I will also point this out from a historical perspective.

The statutes referred to as the Insurrection Act are 200 years old. Those laws were passed at a time when, as I have read, Congress had far more faith in the executives running our country. In particular, the act was put in place after George Washington was forced to jump through certain hoops that existed at that time to keep the peace in the state of Pennsylvania. The Insurrection Act was an act by Congress at that time to make things better or easier for the president because at that time, the president was the father of our country, and many of the founding fathers who followed him had the faith of not just 37% of the people, but of all of the people.

I do not think that the broad language of the Insurrection Act really ever contemplated someone who is acting in the manner President Trump has acted, at least in his first year in office. You talked about President Obama and the number of people deported during his eight years in office. One of the stats I have read in the paper over the past year is, in large part due to the threats being made by the current administration before Trump even took the oath of office a second time, people just stopped coming. The number of people crossing the border illegally is down substantially.

In that regard, it seems to me that President Trump has fulfilled that promise to his constituents without having to engage in these jackbooted tactics that we’re seeing in Chicago and Minneapolis. With all of the funding that has been dedicated to ICE, it is like the $1,200 hammer in the 1980s. ICE is finding excuses to spend that money and to attempt to keep the White House happy. Again, I really have grave concerns about the eventual use of the Insurrection Act.

The statute I read to you allows the president to take measures he considers necessary. It provides a subjective point of view to the president to do what he considers necessary. There is no requirement of a court order. There are no standards set out for what exactly is necessary. It allows President Trump to exercise his subjective point of view in this circumstance. That is what really frightens me. With the Minnesota National Guard in Minneapolis right now, there is a difference between people who are in service one weekend a month and for a couple of weeks over the summer, as opposed to someone who is living that life currently 24/7/365 at Fort Hood.

When the National Guard in Minnesota is done, those people are going to find themselves in the same churches and coffee shops and offices with the people that are on the other side protesting. They act a little differently in relation to their neighbors. Those people are not the neighbors of someone from Fort Hood.

Psychological Analysis & “The 78 Million”

You’re making some tremendous statements because that is my concern as well. It is fascinating that the National Guard in Minnesota is wearing some yellow draping, and they do not have their faces covered versus the ICE, who are coming in with their masks on and all the other things. The population in Minnesota knows which is which. The other thing I would say to you is as a PhD and have worked in mental health clinics, having worked for many years as a therapist before becoming a coach. I have been in the mental health business for 48 years.

What I know is that after Trump’s first term, there were a lot of things written about his mental state. Time Magazine said he is not only a narcissist, but he is a sociopath, and they built a case about how severely disturbed he was. I want to say your analysis of an eight-year-old is exactly what a narcissist is, and it is particularly even more serious when you think about not having a conscience. Sociopaths do not have a conscience. I am not talking about psychopaths. Those are the serial killers. I am talking about sociopaths who have no conscience, and they act to feed their own ego.

I believe something. No matter how people view her, Greene has brought out the issue that Trump is losing his MAGAs. There are articles about MAGAs who do not support the actions ICE is taking. To me, many of the MAGAs are supposed to be religious. How can someone justify treating people the way they are? I want to give you something else. The reason the Texas National Guard was supposed to be called out is that the governor of the state of Texas will do anything Trump asks. He has made it very clear in his redistricting.

It is also a real concern of mine because if you keep saying that immigrants are aliens, and Alito had the audacity to use that word in his dissent, not only that, the White House continues to call people aliens or insurrectionists or any number of things. It is like a program to try to convince people. Now, when 73% to 75% of the country, that has to include some MAGA people who are shifting, do not support this. No matter what their redistricting is, I think they’re going to see some things as a result of it in the 2026 elections. There is too much.

I am curious because the Democrats, as well as some Republicans, are now talking about not supporting any more money or the big bill they have for ICE. They talk about it, and then they back up because it is threatened. Except under Trump’s time, I have never seen any president threaten and have people who will go threaten not only families but also people in Congress. Not only that, we’ve had congressional representatives and their wives killed.

There is violence that is there, but we cannot back off from it. We have to continue to have a voice and say, This is not acceptable. It is not a way.” One of the things that people do not understand is that I have a video in one of my previous episodes that gives a thorough analysis of what Biden did near the end. He and Kamala Harris did six months before the election. They did not talk about it enough.

That video shows the reason there was a complete stoppage of people trying to come over. I do not remember the episode, but it is a video I used that gives a clear picture, and it was put out in one of the major magazines as well. It was put out two weeks before the election, and it is tragic because it shows what happens. I will back up what you’re saying. Before Trump took office, there was a stoppage in the massive entering of immigrants from other countries.

You have touched on issues in sociology and psychology that I’m not going to get into. My focus was simply to point out under the Insurrection Act. If I am peacefully protesting ICE being in my city, you could have the president viewing the use of active military as being necessary to suppress my actions that oppose the execution of the laws of the United States. Is my peaceful protest an opposition to the execution of the laws of the United States?

[bctt tweet=”Is my peaceful protest an opposition to the execution of the laws of the United States? I fear that’s where we’re headed.” via=”no”]

I fear that is where we’re headed. I fear that, given the breadth of the so-called Insurrection Act, that’s the type of thing we could see going forward. I will do this step. I will engage in a simple math problem because, as a lawyer, I think I am qualified to do this, even though I cannot weigh in on issues that are in your area of expertise, like the psychology and sociology of what’s going on. I will point out that my understanding from the most recent census is that we’ve got roughly 250 million people in the United States of voting age who are citizens.

Seventy-eight million of them regardless of the flaws we may have observed in this man, or let’s say they’re probably not flaws to those 78 million, regardless of what we learned about President Trump during his four years in office during his first term, 78 million of us still showed up at the polls and voted for him to have another term as president after Biden served four years. The real issue is not only with our president, but is also with understanding why it is 78 million of our neighbors decided to do that, decided to vote for someone who I fear will use the Insurrection Act before this term is over.

You run up a good point, I think of 78 million, because I know how much money was spent to create comments that were a lie about Kamala Harris in a Jewish community to say she was not going to support a Jewish community. There were all kinds of propaganda and lots of money spent on putting out very untruthful things. What we’re seeing here, number one, is that there is a group of people who are very religious and thought he was the coming. After he lived through being shot, they thought that somehow he was the answer. The other part had no knowledge or understanding.

If he is the answer, what is the question?

That is what my problem is. We did not even have a question. Nobody questioned it. There was a group that had no knowledge about politics, and they heard the propaganda and they heard the drama he created. They then voted for him because they had no knowledge about the issues at hand. One of the things is happening. I hate to say this on a show, but I’ll say it anyway. I think this had to happen.

He had to become president, so all those 78 million who voted for him could then see the real person and who he is. There is a reality. He said he was going to be much more vicious and much more aggressive in his second term. The truth of it is, he does not have previous Republicans who held him accountable. We see evidence of it. Republicans are not holding him accountable because Congress has become a non-entity.

My answer to all that is that it is the reason I do these shows, Richard, with you, and then spend all the time researching and writing them. I am making every effort to educate people about what is happening. It is then their right to decide what they really want to do. Who do they think best represents them? There is a very interesting thing that I’m just going to drop in here that has nothing to do with our case. Crockett, who is not suppressing any comments in Texas about Trump, has 43% of a 37 in her particular Senate race she’s running.

People are waking up. I do not know what they’ll do with what they’re seeing, but if 73% to 75% do not support ICE, they are going to do something. They will protest. They will silently vote so nobody knows what is happening. I am concerned, and I think there is a great possibility your prediction is correct because there are too many things happening with the Justice Department and a constant effort to do anything against Democrats or anything against people that he perceives as an enemy.

That is in my field. That is the reason I have mentioned some of the research and some of the things people have diagnosed him with that we think we see today. I’ll be honest, I am probably going to do a show by myself, because I am building behavior patterns to show that he is not just eight years old.

There is a real reason for him taking all these actions, because there’s something seriously wrong. Let me ask you this. Can you take this case we’ve talked about, and the things that are in your field, and what would you say are the most important things for us as Americans to understand about what is going on with the Supreme Court, with the circuit courts, and with the district courts? That is how I would like to end.

Justice Kavanaugh’s Shift On Racial Profiling

Moving outside of the substance of the order that we can presume, while no names are on it, the presumption is that Amy Coney Barrett, John Roberts, Sotomayor, Kagan, and Jackson were five justices who agreed with the court’s order. We also know that Kavanaugh concurred with the first part, that being regular forces means active military. I’ll close with this point. There was a case before the end of the year, again, it was an order, not an opinion, but regarding some of the searches and detentions that ICE was engaging in, there were questions raised about profiling improperly.

Kavanaugh, in a concurring opinion in that case, and I believe he mentions it or cites it in his concurring opinion in Trump v. Illinois, had said that it is okay for ICE to use factors such as the color of one’s skin in deciding to make these stops without any real probable cause. Now, in Footnote 4 of Kavanaugh’s concurrence, I want to read this language because it really is out of place for this order.

Footnote 4, he says, or it reads “The state and the government disagree about whether the immigration officers have violated the Constitution in making certain immigration stops and arrests. The basic constitutional rules governing that dispute are longstanding and clear. The Fourth Amendment requires that immigration stops must be based on a reasonable suspicion of illegal presence. Stops must be brief, arrests must be based on probable cause, and officers must not employ excessive force. Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity.”

It seems to me at Note 4 of his concurrence, Kavanaugh is backpedaling from what he said in a concurring opinion about the propriety of these ICE stops in late 2025. It may be that, as he has seen more of these cases and more of these issues have been briefed, he is telling us that, at the preliminary stage, I was okay with it. When we issue a final opinion, I am not going to be okay with it.

It could just be that in seeing these things, perhaps he is coming around and changing his point of view. In one of our earlier episodes, I mentioned to you that he seems to be a bit of a pragmatist. He seems to think of the broader effect of the opinions the court issues, in addition to the law. Where I’m going with that is it seems to me, at least with Trump v. Illinois, you have got six justices who want to put guardrails in place on this administration in some circumstances.

[bctt tweet=”Perhaps it’s time (Chief Justice Roberts) starts weighing in on some of these major substantive issues, but the truth is, that’s just a wild guess on my part.” via=”no”]

Perhaps we can look for that going forward and look for the court, not just in these preliminary orders, but in some of the opinions we are waiting on, like whether or not the president can impose tariffs or whether or not that is an improper use of the taxation authority that belongs to the legislative branch, not the executive branch. In some of those opinions, we may see the court shifting a little amongst what I would characterize as the non-Thomas and Alito conservatives.

Perhaps Kavanaugh is taking a more practical approach in relation to this administration, despite his beliefs in the unitary executive authority. Perhaps Justice Roberts is deciding, “I’ve spent the past two decades trying to decide things on rules and procedure and avoiding major substantive issues where I can, but perhaps it’s time I start weighing in on some of these major substantive issues.” Perhaps we’re headed in that direction. The truth is, that is just a wild guess on my part, Jackalyn.

I want to tell you something. We need to put these wild guesses out because I do believe the American people are getting tired of this. When we have the percentages I am seeing in legitimate news, then I think what is going to happen is people are seeing him for who he really is. It is going to be important for us to keep looking. Many of my friends say we can forget the Supreme Court. I know we cannot.

There is something that we have to realize. Roberts was not appointed by Trump. Roberts is from another appointment. Not only that, but Barrett sometimes surprises me with what she does. She is fixated on abortion, but then she comes up with something, and I go, “You sounded like you have some legal knowledge that can be helpful.”

I do not know where we’re going, but I think you and I are making our very best effort to say, “People stop looking at the lack of action in Congress and start paying attention to the court system because that is where we are taking some stands to really, truly have a government that has to live with the rule of law.” To me, the rule of law is what is at the foundation of our democracy. I thank you, Richard, and I am looking forward to whatever you bring up next, because you always come up with the right thing. Thank you very much.

Important Links

• Richard Wilson
• One First
• Jackalyn Rainosek, Ph.D., on LinkedIn
• Jackalyn Rainosek on Facebook

About Richard Wilson

Richard Wilson is a veteran trial and appellate lawyer. His practice emphasizes the defense of professionals in federal and state courts, and before disciplinary agencies.

For over 20 years, Richard has focused on representing lawyers directly and on behalf of lawyers’ professional liability insurers.

During that time, he has defended and advised hundreds of lawyers and law firms against legal malpractice claims and professional ethics complaints.

His experience as a trial lawyer and with the law of lawyering has enabled him to both counsel and protect his lawyer clients when they find themselves parties instead of advocates or counselors.

KERR WILSON, P.C. 16676 Northchase Drive, Suite 450 Houston, Texas 77060 (281) 260-6304

EDUCATION

• University of Texas at Austin, J.D., 1995

• Louisiana State University, B.S., Finance, cum laude, 1992

BAR ADMISSIONS

• State Bar of Texas

• U. S. District Courts for the Eastern, Northern, and Southern Districts of Texas

• U. S. Court of Appeals for the Fifth Circuit

PROFESSIONAL EXPERIENCE

Kerr Wilson Shareholder Houston, Texas 2008 – present

• Represented clients in breach of contract, tort, employment, and insurance cases

• First chair trial experience

• Lead counsel in multiple appeals in both state and federal appellate courts

• Advisor for small and mid-sized businesses in the energy industry

• Responsible for all facets of managing and operating a law office

McFall, Breitbeil & Shults Associate & Shareholder Houston, Texas 2001 – 2008

• Represented clients in breach of contract, tort, employment, and insurance cases

• First chair trial experience

• Lead counsel in multiple appeals in both state and federal appellate courts

• Established the budget, managed litigation, identified corporate objectives, retained local counsel and experts, and tried complex cases that were pending in multiple jurisdictions

Chamberlain, Hrdlicka, White, Williams & Martin Associate Houston, Texas 1997 – 2001

Hirsch, Robinson, Sheiness & Glover Associate Houston, Texas 1995 – 1997

ACHIEVEMENTS

• First chair jury trials in professional liability, breach of contract, insurance, trade secret, and personal injury cases

• Appeals to the Fifth Circuit and Texas appellate courts

• AV Rated by Martindale-Hubbell

PUBLISHED CASES

• Blair v. Fritsch, 608 S.W.3d 407, 414 (Tex. App.—Houston [1st Dist.] 2020, pet denied)

• Webb v. Crawley, 590 S.W.3d 570 (Tex. App.—Beaumont 2019, no pet.)

• O’Hern v. Mughrabi, 579 S.W.3d 594 (Tex. App.—Houston [14th Dist.] 2019, no pet.)

• Sheller v. Corral Tran Singh, LLP, 551 S.W.3d 357 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)

• Kelly v. Nichamoff, 868 F.3d 371 (5th Cir. 2017)

• Stallworth v. Ayers, 510 S.W.3d 187 (Tex. App.—Houston [1st Dist.] 2016, no pet.)

• Galindo v. Prosperity Partners, Inc., 429 S.W.3d 690 (Tex. App.—Eastland 2014, pet. denied)

• Graper v. Mid-Continent Cas. Co., 756 F.3d 388, 390 (5th Cir. 2014)

• Allstate Tex. Lloyd’s v. McKinney, 964 F. Supp. 2d 678 (S.D. Tex. 2013)

• Glattly v. Air Starter Components, Inc., 332 S.W.3d 620 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)

• Willbros RPI, Inc. v. Continental Cas. Co., 601 F.3d 306 (5th Cir. 2010)

• Duerr v. Brown, 262 S.W.3d 63 (Tex. App.—Houston [14th Dist.] 2008, no pet.)

• Digges v. Knowledge Alliance, Inc., 176 S.W.3d 463 (Tex. App.—Houston [1st Dist.] 2004, no pet.)

• Bauer v. Texas, 341 F.3d 352 (5th Cir. 2003)

• King v. Dallas Fire Ins. Co., 85 S.W.3d 185 (Tex. 2002)

PUBLICATIONS

• Author, From Advocate to Party – Defenses for Lawyers Who Find Themselves in Litigation, 61 LAW REVIEW OF SOUTH TEXAS COLLEGE OF LAW 43 (2020)

• Author, Policy Benefits- Are They Recoverable Under Extra-Contractual Theories When A Covered Claim is Denied?, JOURNAL OF TEXAS INSURANCE LAW, Volume 12, Issue 5, at 17 (cited by the Texas Supreme Court in USAA Texas Lloyds Co. v. Menchaca, 545 S.W.3d 479, 487 (Tex. 2018))

• Author, The Additional Insured, an update of recent developments in Texas focusing on additional insured clauses and indemnity agreements

• Co-author, Recent Legislation Concerning Attorneys, Texas Lawyers’ Insurance Exchange Newsletter

• Panelist, Occurrence-Innocent Insured Pays Price for Guilty Third Party? Presented to the Insurance Practice Section of the State Bar of Texas

REPRESENTATIVE EXPERIENCE

• Successfully defended an attorney in a two-week trial in federal court against fraud claims based on representations made during negotiations for the purchase of a multi-million-dollar interest in an oilfield services company.

• Defended one of the world’s largest insurance brokers in a malpractice and breach of fiduciary duty case. This was one of the first cases to go to trial concerning broker duties related to the failure of Reliance. I obtained a take nothing judgment for the broker.

• Defended an oilfield services company in a catastrophic injury case where the client destroyed the key piece of evidence after the accident. After a week-long trial, the jury returned a finding of minimal liability and damages against the client.

• After a month long trial, obtained a take nothing judgment for a manufacturing company in a misappropriation of trade secrets case. Represented that client and several co-defendants in the appeal, and successfully reversed an unfavorable verdict against the co-defendants.

• Successfully defended a liability insurer in a bad faith and Texas Insurance Code case concerning damages to a major pipeline. Obtained a summary judgment in the client’s favor, and persuaded the Fifth Circuit that the client’s coverage position was correct on appeal.

• Represented an employer in an insurance coverage dispute all the way to the Texas Supreme Court, and persuaded the Texas Supreme Court to recognize coverage for the employer when an employee has committed an intentional act.

• After being hired by a probate judge to defend him, successfully obtained the dismissal of a suit against him and on appeal defined the judicial immunity available to courts in Texas.

• Obtained summary judgment for a law firm sued for malpractice over its handling of Sulzer implant cases. The summary judgment was affirmed on appeal.