Did the country mandate this?
Photo: Joshua Lott/The Washington Post via Getty Images
When looking at judicial review of Trump 2.0’s many audacious power grabs, it’s easy to get bogged down and tangled up in legalisms. Constitutional law is complicated. Federal court procedures are not designed to cope with unprecedented assertions of presidential power advanced almost hourly in places all over the country. An extraordinary percentage of lower court, appellate court, and Supreme Court cases involving the administration’s actions are on emergency dockets. Staid jurists are trying to keep up with a fast-moving Trump train that is very deliberately violating norms in every direction.
But now a three-judge panel of the Seventh Circuit Court of Appeals, in a ruling that halted a National Guard deployment in Chicago, wrote some sentences that cut through the fog like a powerful search light and reached the real point of contention:
Political opposition 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 committed by rogue participants in the protest. Such conduct exceeds the scope of the First Amendment, of course, and law enforcement has apprehended the perpetrators accordingly. But because rebellions at least use deliberate, organized violence to resist governmental authority, the problematic incidents in this record clearly fall within the considerable day-light between protected speech and rebellion.
In other words, the judges (one of whom was appointed by Trump, another by George H.W. Bush) slapped down as absurd the administration’s claim that protests against ICE’s activities in Chicago constitute a “rebellion” that warrants otherwise illegal deployments of military force in a U.S. city. And neither Donald Trump nor Pete Hegseth nor Kristi Noem nor Tom Homan nor Pam Bondi can turn these protests into the equivalent of the Whiskey Rebellion, the Civil War, or a foreign invasion. Nor can Texas governor Greg Abbott, who is eager to send his own National Guard units to Democrat-governed Illinois in what amounts to a war between the states.
It’s increasingly clear that treating political opposition as a rebellion is at the heart of the administration’s legal case for the militarization of political conflict that goes well beyond protests against ICE raids. In MAGA-speak circa 2025, the “Democrat Party” is now the “Radical Left,” and everything it does is presumptively illegitimate and probably illegal. Just yesterday White House press secretary Karoline Leavitt bluntly asserted that “the Democrat Party’s main constituency are made up of Hamas terrorists, illegal aliens, and violent criminals.” Earlier this week House Speaker Mike Johnson said the peaceful No Kings rally in Washington planned for October 18, which will feature massive displays of Old Glory and countless patriotic gestures, is insurrectionary: “This ‘Hate America’ rally that they have coming up for October 18, the antifa crowd and the pro-Hamas crowd and the Marxists, they’re all going to gather on the Mall.”
This follows onto the threats of repression broadcast by the president and by his top domestic policy adviser, Stephen Miller, after the assassination of Charlie Kirk. Both men blamed this crime by a deranged individual on Trump opponents writ large, with Miller going so far as to suggest that calling his boss “authoritarian” was an illegal incitement to the kind of violence that murdered Kirk, and an act of “terrorism.” Trump’s subsequent executive order called for a literal war on “antifa,” the shadowy and scattered network of protesters, that is useful in the ongoing clampdown precisely because it’s nowhere and everywhere. Meanwhile, his so-called Secretary of War called in the entire leadership of the U.S. armed forces to mobilize them for duty against the “enemy within.” This steady escalation of rhetoric, to be clear, is the logical culmination of the president’s relentless campaign of demonization throughout the 2024 campaign that treated opponents as anti-American, anti-Christian crooks who were deliberately destroying the country and importing millions of criminals to steal elections.
Suffusing this militant attitude is the pervasive belief in MAGA circles that Trump’s narrow 2024 victory represents a mandate to do whatever he wants. It’s unlikely, in fact, that the swing voters who pulled the lever for Trump because they wanted lower gasoline or grocery prices or better border control bought into the full Trump 2.0 agenda, which is why his job-approval numbers are well underwater. But even if they did buy the whole enchilada, the 49.8 percent of voters who backed Trump do not have the right to revoke the constitutional rights of the remaining 50.2 percent. That would be true, moreover, had the 47th president actually won the “historic landslide” he keeps mendaciously claiming.
The words of the Seventh Circuit judges really do need to become a rallying cry against the administration’s efforts to use every bit of power it can amass to silence and intimidate opponents and critics. Political opposition is not a rebellion and doesn’t justify a repression that turns half the country into suspected terrorists. This president has more than enough power to pursue his policies without ruling like a king. Enough is enough.
Ed Kilgore
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