The Supreme Court is also weighing the president’s authority to deploy the Guard in Chicago.
Over the administration’s objection, Judge Karin Immergut, a Trump-45 appointee to Oregon’s federal district court, has kept in place an injunction against President Trump’s federalization and deployment of the National Guard in Portland. The preliminary injunction will remain in place through Friday, when Judge Immergut says she will issue a final ruling after the three-day trial just completed on the dispute. But the 16-page opinion she issued on Sunday leaves no doubt about the outcome; she will rule against the president.
The case involves the same issues the Supreme Court is now considering in the context of Trump’s attempt to deploy the Guard in Illinois — a case I wrote about last week.
Like the district court in Chicago and the Seventh Circuit, Judge Immergut concluded that the president’s attempted deployment is invalid under Section 12406 (of Title 10, U.S. Code, in which laws pertaining to the Guard are codified).
The Trump Justice Department contends that the deployment is justified under two prongs of Section 12406: subsection (2), which permits deployment if there is a rebellion or danger of rebellion against the federal government’s authority; and subsection (3) which authorizes deployment whenever “the President is unable with regular forces to execute the laws of the United States.”
In sync with all the courts that have considered Section 12406 since the president began federalizing state Guard units, including the Ninth Circuit (by which Immergut is bound), the judge found that, while a measure of deference is owed to the president’s judgment, the judiciary is empowered to construe the statute and determine whether its terms have been satisfied.
As Immergut put it, relying on the Ninth Circuit’s Newsom v. Trump case (involving the deployment of the Guard in Los Angeles earlier this year): The court may “review the President’s determination to ensure that it reflects a colorable assessment of the facts and law within a range of honest judgment.” (Internal quotation and other citation omitted.) Further quoting the Ninth Circuit, she added, “The President’s “exercise of his authority to maintain peace” must be “conceived in good faith” (emphasis in original and in Newsom).
With that as the premise, the court concluded that there is no rebellion or threat of rebellion in Portland. Drawing on sources from the early 20th century, when what is now Section 12406 was enacted, Immergut held that “a rebellion is an organized group engaged in armed hostilities for the purpose of overtaking an instrumentality of government by unlawful or antidemocratic means.” The judge found that the demonstrations against ICE in Portland are essentially not organized and not the kind of opposition at scale the federal government confronted in, for example, Shay’s Rebellion (1786-87) in Massachusetts and the Whiskey Rebellion (1794) in Pennsylvania.
Immergut also rejected the administration’s claim that the president is unable with regular forces to execute federal immigration law. She applied the Ninth Circuit’s test for whether the president’s deployment authority is triggered: Have there been “activities [that] significantly impeded the ability of federal officers to execute the laws” (emphasis added)? This is a standard more favorable to the administration than that applied by Judge April M. Perry, the Biden appointee in the Chicago case. Judge Perry construed the key terms of this Section 12406 prong — unable and regular forces — to mean (a) incapable of enforcing the laws and (b) national armed forces, not law enforcement agents.
Nevertheless, Immergut found that the federal law-enforcement agents had not been “significantly impeded,” although she conceded that there had been sporadic acts of violence and obstruction against federal officers. This will surely be the most disputed point on appeal — particularly if, in the Chicago case, the administration can persuade the Supreme Court that the Ninth Circuit’s “significantly impeded” standard (rather than Judge Perry’s “incapable of enforcing” standard) is correct.
Protesters in Portland caused property damage to ICE’s facility on June 12, forcing the agency’s Enforcement and Removal Operations (ERO) to relocate to another location. Judge Immergut concluded, however, that this interfered with administrative tasks, not ERO arrests and other enforcement activities. And while demonstrators have frequently blocked ICE’s driveway, forcing agents to clear it repeatedly in order to function, the agents have nevertheless continued to function.
To my mind, this is the disconnect between the administration and the courts. President Trump believes he should be able to make a show of military strength to protect federal functions if they are threatened. The courts counter that, (a) the default in U.S. law is that we don’t want the military involved in domestic law enforcement (which the military doesn’t want, either), and (b) if the president wants to deploy the Guard under Section 12406, he has to comply with the statute’s conditions — namely, inability to enforce the law, not mere interference with law enforcement.
To be clear, the courts are not saying interference with law-enforcement agents is excusable; it’s a crime and offenders can and should be prosecuted. The narrow question here is whether the interference has reached the point at which it’s reasonable to say the law-enforcement agents are unable to carry out their missions absent military protection.
Finally, I repeat that Section 12406 is not necessarily the endgame. If the Supreme Court ultimately rules against the president, the question will be whether he will deploy military forces (not the guard by the regular armed forces) on the theory that he has Article II constitutional authority to protect federal functions, facilities, and personnel. Moreover, the Insurrection Act may give the president more leeway to resort to military force than Section 12406.