Outside the Broadview, Ill., ICE facility near Chicago.
On Tuesday, U.S. Rep. Clay Higgins (R-La.) and the other members of the House Freedom Caucus’s Board of Directors sent a letter to President Trump stating that:
All Americans have the right to protest — including their right to speech and to bear arms consistent with our laws — but there is no right to thwart federal, state, or local law enforcement and the state of order among our citizens. The coordinated effort to stop law enforcement by politicians in Minnesota and around the country has caused chaos, and led to the tragic deaths of two Americans in Minnesota. It must end.
The Freedom Caucus has it exactly right:
- All Americans do have the right to protest — citizens have the First Amendment right “peaceably to assemble” (though, as I have written, “[s]imply put, aliens do not have the same level of First Amendment rights as American citizens”), and the Second Amendment right to “keep and bear Arms” (though whether aliens, especially illegal aliens, have any such rights is still being debated in the federal courts).
There is no right to thwart law enforcement. Applicable federal criminal offenses include:
- forcibly assault[ing], resist[ing], oppos[ing], imped[ing], intimidat[ing], or interfer[ing] with any [officer or employee of the U.S. government] while engaged in or on account of the performance of official duties [18 U.S.C. § 111],
- willfully injur[ing] or committ[ing] any depredation against any property of the United States [18 U.S.C. § 1361, or]
- knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceal[ing], harbor[ing], or shield[ing] from detection … such alien in any place, including any building or any means of transportation[. (8 U.S.C. § 1324)]
- The coordinated effort to stop law enforcement by politicians in Minnesota and around the country has indeed caused chaos, and led to the tragic deaths of two Americans in Minnesota and it must end. That being said, any potentially unlawful use of force — especially deadly force — by federal law enforcement officers must be fully and fairly investigated and potentially lead to sanctions up to and including criminal prosecution.
- As I have written, the Minneapolis public school system has gone all-in on an effort to shield/conceal illegal aliens in order to frustrate the Department of Homeland Security’s enforcement of federal immigration law.
- On June 17, 2025, Mariah Woelfel reported for WBEZ Chicago Public Media that Chicago Mayor Brandon Johnson declared “Whatever is necessary. ... We should all be committed to doing just that[]” regarding “militarized” immigration enforcement. “Whether it’s in the courts, whether it’s in the streets or with policy, we’re going to continue to defend and stand up for working people.” Because Chicago is the new Paris ‘68, the time is for fighting in the streets (as the Rolling Stones once put it)?
As Supreme Court Justice Samuel Alito wrote in December:
When the October 4 ramming incident [against Border Patrol personnel] was reported to the Chicago Police Department, an internal dispatch stated that “NO UNITS WILL RESPOND TO THIS.” On September 13, when rioters threw rocks, slashed tires, and poured flour into a federal vehicle’s gas tank, [U.S. Immigration and Customs Enforcement] officers called the Broadview Police Department three times to ask for assistance. The Broadview Police never responded.
The House Freedom Caucus encouraged President Trump to take four responsive steps. One was to “Maintain necessary law enforcement including ICE in Minneapolis and all other locations necessary to carry out removals of dangerous aliens and to maintain order and safety for all Americans.”
The Freedom Caucus has it exactly right:
De-escalation is one thing. Surrender to the mob, to an insurrection, is quite another. The U.S. District Court for the District of Minnesota eloquently explained the danger of doing so in its 1936 decision in Strutwear Knitting Co. v. Olson:
That … accession to the demands of insurrectionists or rioters … is one way of restoring peace and quelling disorder, no one will deny. It has a direct, even though a dishonorable, relation to the maintenance of order, but no relation at all to the preservation of law. It results in the restoration of peace and order at the sacrifice of law.
The court went on to say that:
A rule which would permit an official, whose duty it was to enforce the law, to disregard the very law which it was his duty to enforce, in order to pacify a mob or suppress an insurrection, would deprive all citizens of any security in the enjoyment of their lives, liberty, or property. … Carried to its logical conclusion, the rule would result in the civil authorities suppressing lawlessness by compelling the surrender of the intended victims of lawlessness. The banks could be closed and emptied of their cash to prevent bank robberies; the post office locked to prevent the mails being robbed; the citizens kept off the streets to prevent holdups; and a person accused of murder could be properly surrendered to the mob which threatened to attack the jail in which he was confined.
- We are one nation. States don’t get to decide which federal laws will apply within their boundaries any more now than they did in 1860:
As the Supreme Court explained in its 2012 decision in Arizona v. United States:
Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect. … From the existence of two sovereigns follows the possibility that laws can be in conflict or at cross-purposes. The Supremacy Clause provides a clear rule that federal law “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2. Under this principle, Congress has the power to preempt state law.
- The federal government is sovereign and supreme within the sphere of immigration. The Supreme Court ruled in its 1976 decision in De Canas v. Bica that “Power to regulate immigration is unquestionably exclusively a federal power.” And the Court explained in its 1982 decision in Toll v. Moreno that “Our cases have long recognized the preeminent role of the Federal Government with respect to the regulation of aliens within our borders.”
The Supreme Court concluded in its 1893 decision in Fong Yue Ting v. United States that:
The power to exclude or to expel aliens, being a power affecting international relations, is vested in the political departments of the government, and is to be regulated by treaty or by act of Congress, and to be executed by the executive authority according to the regulations so established. [Emphasis added.]
The second step the Freedom Caucus recommended was for President Trump to “Use all tools necessary — including the Insurrection Act ... to maintain order in the face of unlawful obstructions and assemblages that prevent the enforcement of the laws of the United States.”
The Freedom Caucus has it exactly right:
- As I have written, President Trump would “have ample justification to use the Insurrection Act to allow for military assistance with large-scale deportation efforts”, meaning that “[t]he U.S. military could provide a key assist in DHS’s monumental task”, “help[ing] track down removable aliens”, “help[ing] detain them”, and “help[ing]” remove them”.
The right to peaceably assemble does not mean the right to engage in “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States” that “make it impracticable to enforce the laws of the United States ... by the ordinary course of judicial proceedings”. Such acts are sufficient predicates for the president to trigger the Insurrection Act and “call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion”.
And it does not mean the right to engage in “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.” Such acts are sufficient predicates for the president to trigger the Insurrection Act and “us[e] the militia or the armed forces, or both, or by any other means, [to] take such measures as he considers necessary to suppress, in a State”, such insurrections, domestic violence, unlawful combinations, or conspiracies.
- It is important to note, as Joseph Nunn has written: “[T]he Supreme Court clarified in Sterling v. Constantin (1932) that courts may still review the lawfulness of the military’s actions once deployed. In other words, federal troops are not free to violate other laws or trample on constitutional rights just because the president has invoked the Insurrection Act.”
The Freedom Caucus’s letter explained that:
The [Insurrection] Act has been used 30 times in our history, ranging from the efforts of Presidents Washington and Adams to suppress rebellions, to Presidents Eisenhower, Kennedy, and Johnson enforcing federal court orders desegregating schools. Most recently, President George H.W. Bush used the Act in 1992 at the request of California’s Governor to restore order during a period of civil unrest.
The Freedom Caucus has it exactly right:
As I have written, presidents have relied on the Insurrection Act to deal with 30 crises involving insurrection and domestic violence, in order to safeguard the nation, protect the lives of both citizens and noncitizens, allow the federal government to carry out its functions, safeguard the rights of freed slaves during post-Civil War Reconstruction and their descendants during the 20th century’s civil rights struggles, and safeguard interstate commerce. As Elizabeth Goitein and Joseph Nunn have written, President Ulysses S. Grant used the Insurrection Act “to suppress the terrorist insurgency waged by the first incarnation of the Ku Klux Klan”, President Grover Cleveland used it “to protect Chinese immigrants from violent white mobs”, and Presidents Dwight Eisenhower, John F. Kennedy, and Lyndon Johnson used it to “protect African Americans’ civil rights during the Little Rock crisis, the Ole Miss Riot, and the so-called Stand in the Schoolhouse Door in Alabama”.
I wonder if Mayor Johnson ever considered how the fate of this nation could have been altered had Presidents Eisenhower, Kennedy, and Johnson shared his repulsion at the thought of federal military forces entering communities to ensure the enforcement of federal law and thus not sent in the military to protect black citizens from mob violence during the 1950s and 1960s?
In sum, the Freedom Caucus has said what needed to be said and is to be congratulated for it.