A federal judge on Friday ruled President Trump unlawfully called up and planned to deploy Oregon’s National Guard to Portland, the most decisive blow yet to his bid to send troops into Democratic-led cities where protests have centered on federal immigration facilities.
U.S. District Judge Karin Immergut, a Trump appointee, permanently blocked the president from sending Oregon’s soldiers into the city after determining that the president ran afoul of federal law and stepped on the state’s sovereignty in his bid to send the troops into Portland streets.
It marks the first time a judge has ruled on the underlying legal merits of Trump’s aggressive use of the National Guard, as challenges to his efforts in Los Angeles, Chicago and Washington, D.C., continue to move through the courts.
“To be clear, today this Court does not rule that the President can never deploy the National Guard to Oregon, or to any other location, if conditions on the ground justify the Guard’s intervention,” Immergut wrote. “But under the U.S. Constitution, Congress possesses the power to call up the National Guard ‘to execute the Laws of the Union, suppress Insurrections, and repel Invasions,’ and Congress’s delegation of its power to the President is by statute.
“Unless and until the President lawfully federalizes National Guardsmen…‘National Guard members serve solely as members of the State militia under the command of a state governor,'” she said.
The decision comes on the heels of a three-day trial, which featured testimony from local and federal law enforcement — often in tension — about the nature of the protests at the heart of the case.
Trump called up Oregon’s National Guard in September, promising to protect “war-ravaged” Portland and its U.S. Immigration and Customs Enforcement (ICE) facility. State and city officials quickly sued to block his efforts.
The president initially federalized and moved to deploy 200 Oregon troops, but after Immergut temporarily blocked the effort, he sought to send troops from California and Texas into the city, prompting the judge to bar any troops from being deployed. The administration has appealed.
At trial, Justice Department (DOJ) lawyers argued that Trump lawfully federalized the National Guard under a provision of Title 10 that lists three circumstances where the president may do so: an invasion, a rebellion or an inability to execute the law with regular forces.
They claimed that the protests outside Portland’s ICE facility have thwarted federal officers’ ability to do their jobs without help and amounted to rebellion against the government, while maintaining that courts should not review Trump’s determination.
“Congress, in Section 12406, made those decisions for the president to make,” said DOJ lawyer Eric Hamilton, referencing the provision.
Two Federal Protective Service supervisors testified anonymously that the National Guard would alleviate strains, though they conceded that neither requested military assistance.
Immergut noted their testimony in her ruling, in addition to the testimony of Maj. Gen. Timothy Rieger, acting vice chief of the National Guard Bureau, who said he had no personal knowledge of the situation on the ground in Portland when issuing the memo proposing the troops’ assistance.
Portland police provided a different picture of the scene on the ground in testimony.
They said that largely peaceful protests have already been inflamed by the few federal officers on site and pointed to the riots that consumed the city in 2020 to exemplify how tactless policing can rile up crowds.
The officers also used the 2020 demonstrations — which began as peaceful demonstrations after George Floyd’s police killing in Minneapolis but devolved into 200 days of sustained protest and sometimes violent clashes — to undermine the administration’s contention that the city is now under siege.
“It was just an entirely different type of disorder,” Portland Police Bureau Cmdr. Franz Schoening said of the protests five years ago.
A three-judge panel on the U.S. Court of Appeals for the 9th Circuit paused one of Immergut’s orders last month, but the appeals court vacated that decision and said the full court would rehear the case.
Trump’s efforts to deploy the National Guard to major cities have seen varying success.
Troops are on the ground in California and D.C., but courts have so far blocked deployment in Illinois — though the situation could rapidly change.
The Supreme Court is weighing an emergency application from the administration to let it deploy the National Guard to the Chicago area but has not yet ruled.
The judge temporarily paused a portion of her final judgment for 14 days, so Trump may maintain control of Oregon’s National Guard but not deploy any troops as the administration appeals.