U.S. District Judge Karin Immergut issued a temporary restraining order Sunday night blocking President Trump’s deployment of National Guard troops to Portland. Then the Trump administration tried deploying California Guard members instead. So Immergut expanded her order to block troops from any state or Washington D.C., and accused Justice Department attorneys of circumventing her ruling.
“How could bringing in federalized National Guard from California not be in direct contravention of the TRO that I issued yesterday?” she asked DOJ attorney Eric Hamilton during proceedings. “You’re an officer of the court. Aren’t defendants circumventing my order?”
Oregon’s attorney characterized the administration’s approach as “a game of rhetorical Whack-A-Mole” – blocking one deployment prompts another from different source, forcing continuous emergency litigation to prevent what courts have already ruled unconstitutional.
Discussion
This judge is just one more cog in the liberal machine trying to block President Trump's efforts to keep our cities safe…
Isn't it time we restore respect for judicial boundaries & state sovereignty from years past?
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Two Constitutional Violations in One Deployment Order
Immergut ruled that Trump’s National Guard deployments violate both federal statute and the Tenth Amendment. The federal law – 10 U.S.C. §12406 – governs when presidents can federalize state National Guard units. The Tenth Amendment reserves powers not delegated to federal government to states.
“It appears to violate both 10 U.S.C. §12406 and the Tenth Amendment,” Immergut said, explaining her decision to issue emergency restraining orders despite limited briefing time.
The statute violation involves requirements for federalizing Guard units. Presidents can’t simply order state Guard members to deploy wherever desired – specific conditions must exist justifying federal control over what are normally state military forces under governor authority.
The Tenth Amendment violation stems from federal government commanding state resources without constitutional authority. When Trump federalizes Oregon’s Guard against the governor’s wishes to enforce federal immigration priorities, he’s asserting federal supremacy over state military forces in ways the Constitution doesn’t authorize.
Immergut pressed Hamilton on this point: “You have to have a colorable claim that Oregon conditions warrant deploying the National Guard – you don’t.”
That exchange reveals the legal problem. The administration can’t articulate conditions in Oregon that justify federal takeover of state military resources. Portland has protests at an ICE facility, but protests aren’t insurrection, and local law enforcement hasn’t requested assistance they can’t handle.
Without genuine emergency conditions that overwhelm state capacity, federal deployment of Guard units becomes unconstitutional overreach – exactly what Immergut ruled.
The California Switch That Showed Bad Faith
After Immergut blocked Oregon Guard deployment Saturday, the Trump administration pivoted Sunday to deploying California National Guard members to Portland instead. The logic apparently was that blocking Oregon troops didn’t prevent using other states’ Guard units.
That prompted California to join the lawsuit and Immergut to expand her restraining order. The judge’s questioning of Hamilton reveals her view that the administration was deliberately circumventing her order’s intent rather than complying with its terms.
“You’re an officer of the court,” Immergut told Hamilton, emphasizing that DOJ attorneys have ethical obligations beyond zealous advocacy. Officers of the court shouldn’t help clients evade judicial orders through technical workarounds that violate orders’ obvious purposes.
The California switch demonstrated administration strategy – when courts block one approach, try variations until finding something courts haven’t explicitly prohibited yet. That forces continuous emergency litigation where states must anticipate every possible workaround and seek judicial orders blocking each one.
Oregon attorney Scott Kennedy’s “rhetorical Whac-A-Mole” characterization captured this dynamic. The administration treats constitutional litigation like arcade game – when one approach gets blocked, try another until judges specifically prohibit that too.
Kennedy also referenced reports that Trump may deploy Texas National Guard to Chicago, suggesting the pattern will continue beyond Oregon. Each city facing unwanted federal troop deployment must separately litigate, and administration can pivot between different states’ Guard units to complicate judicial oversight.
Illinois and Chicago Sue Over Federalized Deployments
Illinois and Chicago filed suit Monday asking federal courts to halt federalization of Guard troops from Illinois and Texas, calling the move “patently unlawful.” Trump authorized 300 Illinois Guard members to go to Chicago to “protect federal officers and assets,” while Texas Governor Greg Abbott volunteered 400 Texas troops for deployment at Trump’s discretion.
The Illinois case presents similar constitutional questions as Oregon litigation. Can presidents federalize state Guard units to enforce immigration priorities in cities that don’t want federal military presence and where genuine emergencies don’t exist?
Illinois Guard members serve under governor authority unless federalized for legitimate national emergencies. Trump is federalizing them not for war or natural disaster or overwhelming civil disorder, but to support ICE operations in Chicago – a city with functional police departments and no genuine insurrection.
Texas voluntarily offering troops doesn’t resolve constitutional problems. Abbott can’t give Trump authority Abbott doesn’t possess. State governors can’t authorize federal government to deploy Guard troops in other states against those states’ wishes absent constitutional basis for federal deployment.
The lawsuit characterizes deployments as “patently unlawful” rather than close constitutional questions, suggesting Illinois believes legal basis is so weak that courts should quickly block implementation.
Multiple states now have federal litigation challenging same deployment authority. That creates potential for conflicting rulings from different circuits, expedited appeals, and possibly Supreme Court review of presidential power to deploy state military forces domestically.
When Trump Threatens Using the Insurrection Act
Trump said Monday he’s considering invoking the Insurrection Act if courts keep blocking deployments, claiming Portland protests are “really criminal insurrection.”
The Insurrection Act gives presidents extraordinary authority to deploy military forces domestically when insurrection, rebellion, or domestic violence prevents execution of federal law. It’s the primary legal mechanism allowing federal troops on American soil for law enforcement purposes.
But the Act requires genuine insurrection or domestic violence that overwhelms state capacity. Protests at an ICE facility – even violent protests – don’t constitute insurrection unless they’re organized rebellion against government authority rather than protests against specific policies.
Trump characterizing protests as “really criminal insurrection” reveals his approach – define any opposition to federal immigration enforcement as insurrection justifying military deployment. That interpretation would essentially eliminate Posse Comitatus restrictions by allowing presidents to claim any protest against federal policies constitutes insurrection.
Federal judges will scrutinize Insurrection Act invocations carefully. Courts generally defer to presidential determinations about genuine emergencies, but wholesale redefinition of protest as insurrection would likely face judicial resistance.
Trump’s threat also demonstrates escalation pattern. Courts block National Guard deployments under current authority, so Trump threatens using different authority that courts might find harder to block. Each judicial check prompts search for alternative power sources rather than compliance with judicial determinations.
Comparing State Rights Arguments Across Political Contexts
The National Guard deployment litigation involves Democratic governors and attorneys general arguing that federal government can’t commandeer state military resources without constitutional authority. Those are state rights arguments traditionally associated with conservative federalism.
Republicans usually champion state sovereignty and limited federal power. But Trump’s administration asserts federal supremacy over state Guard units for immigration enforcement priorities despite governor opposition. That’s expansive federal power claim contradicting traditional conservative positions on federalism.
The role reversal reflects how constitutional principles become flexible depending on whose ox is getting gored. When federal government pursues progressive priorities over state objections, conservatives champion state rights and Tenth Amendment limits. When federal government pursues conservative priorities over state objections, those same principles become obstacles to overcome.
Democratic governors now making federalism arguments face similar accusations of opportunism. When were they concerned about federal overreach when Obama or Biden was president? Their newfound appreciation for state sovereignty looks suspiciously timed to coincide with Trump asserting federal power they oppose.
But hypocrisy about constitutional principles doesn’t make the principles wrong. Either federal government has authority to commandeer state Guard units for domestic law enforcement despite state objections, or it doesn’t. The answer shouldn’t depend on whether we like the policy goals motivating deployment.
Federal judges must determine constitutional boundaries regardless of policy preferences or which party currently holds power. Immergut’s ruling suggests those boundaries exist and that Trump’s deployments exceed them – not because she opposes immigration enforcement, but because federal government lacks constitutional authority for these specific actions.
Tracking the Administration’s Legal Win-Loss Record
Trump’s emergency docket success at the Supreme Court contrasts with his record in lower courts, where judges frequently block administration actions pending full review. The National Guard cases represent another area where district judges impose restraints even while acknowledging those restraints are temporary pending appeals.
The Justice Department plans appealing Immergut’s ruling, arguing presidents retain authority under federal law to deploy Guard forces for domestic unrest. That appeal will test whether circuit courts agree with district judges that Trump’s deployments lack constitutional basis.
If circuit courts uphold lower court restraints, administration will likely seek Supreme Court emergency relief – adding to already extraordinary shadow docket activity this term. The Court might grant that relief based on institutional preferences for limiting lower court nationwide injunctions and deferring to executive authority on national security matters.
But the Court might also recognize that National Guard deployments raise different concerns than other emergency docket cases. Using state military forces domestically against state wishes tests federalism boundaries in ways that aren’t easily resolved through emergency orders requiring minimal briefing.
The administration’s strategy appears to be implementing policies immediately while litigating their legality, betting that emergency Supreme Court relief will allow continuation even when lower courts impose restraints. That strategy succeeds when justices view lower courts as moving too aggressively and prefer allowing policies to continue pending full review.
Whether it succeeds for National Guard deployments depends on how seriously the Court takes federalism constraints on federal power to commandeer state military resources.
What Local Law Enforcement Says About Needing Federal Troops
Portland police haven’t requested National Guard assistance. Oregon state police aren’t seeking federal military support. City and state officials say they don’t need troops and don’t want them.
The disconnect between Trump’s characterization of Portland as requiring military intervention and local officials’ assessment that their law enforcement can handle situations creates legal problems for deployment justifications.
When federal government deploys military forces domestically, one key factor is whether state and local authorities requested help because situations exceed their capacity. If governors and mayors say they can handle law enforcement without federal troops, that undercuts claims that genuine emergencies justify military deployment.
Trump’s position is essentially that federal government knows better than state and local officials whether military force is needed in their jurisdictions. That’s federal supremacy argument at odds with federalism principles about state sovereignty and local control over law enforcement.
Portland has had protests at the ICE facility, some involving violence and property damage. But cities regularly handle protests – including violent protests – through civilian law enforcement without requiring federal military intervention. The existence of protests doesn’t automatically justify deploying soldiers into cities whose officials oppose that deployment.
Immergut’s ruling reflects this disconnect. She pressed DOJ attorneys on what Oregon conditions warrant National Guard deployment, and they couldn’t articulate circumstances beyond protests that Portland police are managing. Without overwhelming emergencies that exceed state capacity, federal deployment lacks constitutional justification.
Forecasting Where Multi-State Litigation Leads
Oregon and California have obtained temporary restraining orders blocking deployments to Portland. Illinois and Chicago have sued seeking similar relief for Chicago deployments. Additional lawsuits will likely follow if Trump attempts deploying Guard units to other Democratic-led cities.
Each case will produce separate judicial rulings that might conflict, creating urgency for appellate resolution. Circuit splits on presidential authority to deploy Guard domestically would fast-track Supreme Court review.
The administration’s litigation strategy involves implementing policies immediately, appealing any restraints, and seeking emergency Supreme Court relief allowing continuation pending full appeals. That approach has succeeded repeatedly on the Court’s shadow docket.
But accumulating losses in district courts across multiple jurisdictions might eventually influence how appellate courts view these cases. When numerous judges independently conclude that administration actions lack constitutional basis, that pattern becomes harder for appellate courts to dismiss as isolated examples of activist judges overreaching.
The multi-state nature of litigation also complicates administration’s Whac-A-Mole strategy. Each new deployment triggers new lawsuits in different jurisdictions, forcing continuous emergency litigation that strains resources and creates opportunities for unfavorable precedents.
Trump’s Insurrection Act threat represents recognition that National Guard deployments face serious legal obstacles. Rather than abandon deployment strategy when courts block current authorities, he’s signaling willingness to invoke different authorities with less restrictive requirements.
Whether Insurrection Act invocations survive judicial scrutiny depends on whether Trump can credibly characterize situations as genuine insurrections rather than protests. Federal judges won’t automatically defer to presidential characterizations that stretch statutory language beyond recognition.
The legal battle over National Guard deployments will continue through district courts, circuit appeals, and possibly Supreme Court emergency docket. Each deployment attempt triggers new litigation. Each judicial restraint prompts administration pivots to alternative approaches.
Judge Immergut accused the Trump administration of playing Whack-A-Mole with her court orders. That characterization will likely apply to the entire legal strategy around domestic military deployments – continuous attempts to find some authority courts haven’t explicitly prohibited yet, forcing states into endless emergency litigation to protect constitutional boundaries the administration keeps testing.
More fake news! Liberals and their activist judges trying to undermine Trump at every turn. He's just enforcing law and order, protecting our cities from chaos. How else are we gonna get control if these blue states do nothing? Total circus!