President Donald Trump’s push to put National Guard troops on the ground in several U.S. cities has created a rapidly escalating situation that poses a new test for democracy and the separation of powers.
U.S. District Judge Karin Immergut, a Trump appointee, ruled Saturday that the Trump administration cannot take over the Oregon National Guard and deploy it on the streets of Portland. When the administration attempted to circumvent that ruling hours later by instead calling in California National Guard troops, Judge Immergut quickly shut down the ruling, saying the move was “in direct violation” of her earlier ruling.
These developments have left the president and his team apoplectic.
Why we wrote this
As President Donald Trump pushes to deploy the National Guard to Democratic cities, a battle is intensifying over the use of troops to support crackdowns on illegal immigration — testing the balance of power between the executive and judicial branches.
White House deputy chief of staff Stephen Miller called the first decision a “legal insurrection” and went even further after the second. “A district court judge has no conceivable authority whatsoever to prevent the president and commander in chief from sending members of the United States military to defend federal lives and property,” he said on X, calling the decision “one of the most egregious and thunderous violations of the constitutional order we have ever seen.”
This is not the only battle taking place on the streets – and in the courtrooms – of a major American city. Illinois and Chicago filed their own lawsuit Monday to block the Trump administration from deploying National Guard troops from Texas and Illinois to their states, calling the move “patently illegal.” A federal judge declined to immediately block the rollout, but asked the administration to “strongly consider pausing” until a hearing scheduled for Thursday.
These legal fights, along with increasingly heated rhetoric, mark the latest escalation in Mr. Trump’s efforts to normalize the use of the U.S. military in domestic settings while putting pressure on both the judiciary and Democratic-led holdout states.
The administration is taking unprecedented steps in U.S. cities by invoking a state of emergency over illegal immigration and public safety, sending in waves of federal agents and citing the need to protect them from local protesters. These measures have sparked clashes with the courts.
Gerard Magliocca, a Supreme Court historian and constitutionalist at Indiana University Law School, says the current level of conflict between the presidency and the judiciary is “unprecedented in peacetime” in U.S. history.
The reason so many of the Trump administration’s measures have been stayed by lower court judges is that many of them have little or no historical or legal precedent, Professor Magliocca says. The judges want to suspend these actions while they assess their legal merits, he said.
Further escalation could be imminent.
President Trump falsely claimed Sunday that Portland was “burning to the ground” and that “insurrectionists” — a term he has used repeatedly in recent days — were behind it.
The Insurrection Act of 1807 authorizes the president to federalize National Guard units and deploy the U.S. military nationally, but only under specific circumstances, including insurrection and armed rebellion. This term “insurrection” therefore has a specific legal connotation. When asked Monday if he would consider invoking the Insurrection Act, President Trump said he would consider it.
“I would if it were necessary. So far it hasn’t been necessary. But we have an insurrection law for a reason,” he said. “If people were killed, if the courts held us back or if governors or mayors held us back, of course I would do it.”
Democrats fear this was the plan all along.
“This escalation of violence is targeted, intentional and premeditated. The Trump administration is following a strategy: to cause chaos, to create fear and confusion, to make peaceful protesters appear to be a mob by firing gas pellets and tear gas canisters at them,” Illinois Governor JB Pritzker said at a press conference on Monday. “Why? To create a pretext to invoke the Insurrection Act so he can send military troops into our city.”
Mr. Trump’s allies in the legal community say lower court judges have repeatedly exceeded their authority in thwarting the president. Temporary restraining orders are just their latest frustration.
“The problem is that judges make snap judgments,” says Josh Blackman, a professor at South Texas College of Law in Houston and editor of the Heritage Foundation’s Heritage Guide to the Constitution.
In the Portland case, “The court simply doesn’t trust the Trump administration. The administration said it needs it.” [deployment] “Protecting federal facilities should not require permission from a judge.”
Aziz Huq, a constitutional law professor at the University of Chicago and a board member of the Illinois chapter of the American Civil Liberties Union, disagrees. The law “requires good faith” to prove that the conditions are met to declare an emergency, he said.
“Simply asserting that something is true when it clearly is not the case is [not] meaningful respect for the law,” he says. Otherwise, “the White House or the government could say ‘anything we think is a rebellion is a rebellion’.”
While Mr. Trump has repeatedly faced pushback from lower court judges, the U.S. Supreme Court, which has a 6-3 conservative majority including three justices he appointed, has so far been more receptive to his approach.
The court has issued numerous “phantom” orders over the past year that overturned lower court decisions. This has allowed the Trump administration’s broad deportation efforts to continue unhindered, including allowing racial profiling during ICE screenings and continuing mass deportations to countries other than those from which immigrants came.
That allowed Mr. Trump to fire many federal employees, including those in parts of the executive branch previously considered independent agencies, and overturned a nearly century-old precedent limiting presidential power. And it barred lower court judges from issuing universal injunctions that previously blocked presidents of both parties from taking nationwide actions until it was determined whether those actions were legal.
The Supreme Court began its new term Monday, with important topics including the Trump administration’s attempts to end birthright, a legal precedent that has existed in the United States for more than a century.
The Portland and Chicago cases could also be brought to court on an emergency basis.
“These cases will invariably be appealed to the Supreme Court, and the Supreme Court will automatically approve what the president does,” predicts Marjorie Cohn, professor emeritus at the Thomas Jefferson School of Law in San Diego and former president of the National Lawyers Guild.
Professor Cohn says the constitutional order is still in place, but is weakening under pressure from the Trump administration. “The separation of powers remains relevant, even if the border between the three branches is blurring,” she warns.
Democratic leaders in cities and states targeted by the Trump administration are sounding the alarm.
Oregon Gov. Tina Kotek called President Trump’s actions “an attempt to occupy and incentivize cities and states that do not share his policies.” California Governor Gavin Newsom warned in an article on X that “America is on the brink of martial law.”
“Donald Trump is using our military as political props and pawns in his illegal effort to militarize our nation’s cities,” Gov. Pritzker said Monday afternoon as several hundred Texas Guard troops prepared to fly to Chicago, calling it “an unconstitutional invasion of Illinois by the federal government.”
The deployment in Chicago follows weeks of a heavy ICE presence and controversial tactics across the city, including a middle-of-the-night raid on an apartment building in which agents allegedly tied up and arrested dozens of U.S. citizens, including children. Department of Homeland Security Secretary Kristi Noem then promoted the raid with a glossy video labeled with the comment “Chicago, we’re here for you.”
ICE agents also repeatedly clashed with protesters outside a facility in the Chicago suburb of Broadview, and clergy, politicians and journalists were injured. Over the weekend, federal agents reported firing “defensive shots” that injured a woman after she was struck and surrounded by vehicles, according to DHS. The slain woman’s lawyer told the court that it was federal agents who hit her. On Monday, a coalition of journalists sued ICE and DHS for using excessive force against them.
In Portland, recent clashes between protesters and federal law enforcement appear more verbal than physical. Since June, protests have fluctuated in size outside ICE’s Portland field office, where agents have sometimes fired into crowds with irritants like pepper spray bullets.
In a court filing, the Justice Department claimed protesters attacked federal law enforcement with “rocks, bricks, pepper spray, and incendiary devices” at the facility, and blocked vehicles from entering and exiting. The Portland Police Bureau says it has made 36 arrests in the area “since the nightly protests began” four months ago. The activity seems confined, more or less, to one block.
Editors Sarah Matusek in Portland, Oregon, and Simon Montlake in Boston contributed to this report.
