Trump Power to Deploy Troops Faces Trial Test in Portland (1)

President Donald Trump’s effort to send troops to Democratic-led cities is facing its biggest legal test yet with a trial over his power to deploy the National Guard to Portland, Oregon, to counter protests.

A three-day trial began Wednesday in Portland to determine if protests that started in June justified Trump’s Sept. 27 order to send in troops, a move that was put on hold by the judge overseeing the lawsuit. In deciding the case, US District Judge Karin Immergut will directly address what level of unrest can justify the president bringing state troops under federal control and deploying them.

The case filed Sept. 28 mirrors other lawsuits challenging Trump’s deployments in Los Angeles, Chicago and Washington, DC. While those cases have been making their way through the courts, none have yet answered whether Trump legally invoked a rarely used federal law to deploy the troops over objections from state and local officials.

The administration claims the protests have been violent and have put federal property and personnel at risk, while often preventing immigration agents from performing their duties. State and local officials say Trump, who has called Portland “war torn,” is wildly exaggerating the situation and that local law enforcement has been able to handle the protests without troops.

Read More: How Trump’s Use of Troops at Home Tests His Powers

During the trial’s opening statements, a lawyer for Portland, which filed the lawsuit along with the state of Oregon, said that Trump’s troop deployment was based on a “manufactured crisis.” Witness testimony and evidence at trial will show that protest activity had diminished significantly for months, and well before the president took action, attorney Caroline Turco said.

“Portland is not war ravaged,” Turco said. “There is no rebellion, and the laws continue to be enforced every day.” She added that the “vast majority of the people were engaging in peaceful First Amendment activity.”

The Justice Department’s lawyer, Eric Hamilton, said in his opening statement that the government’s evidence would show that local agents with the Department of Homeland Security “cannot contain this threat itself.”

The troops are needed “to promote safety” outside the Immigration and Customs Enforcement building that was the focus of protests, Hamilton said. The federal government “has an interest in protecting its property and personnel when they come under attack.”

Authority

Normally, state National Guard members are under the control of individual governors. But the president can bring state troops under federal control under specific circumstances outlined in Section 12406 of Title 10 of the US Code, including a rebellion against the US government or an inability to enforce federal law using regular forces.

Trump argues the situation in Democratic-led cities including Portland, where protests have focused on a single Immigration and Customs Enforcement facility south of downtown, constitutes a rebellion that is also preventing federal agents from enforcing immigration law.

Oregon and other states argue Trump is violating Section 12406 by deploying troops under conditions that do not qualify. They also argue Trump is violating the Tenth Amendment to the Constitution, which protects state sovereignty. Immergut, who is overseeing the trial in Portland, will issue a verdict on both claims.

Portland

Immergut had called Trump’s version of the situation in Portland “simply untethered to the facts.” She temporarily blocked the administration from deploying the troops.

That ruling was later put on hold by a San Francisco appeals court, which held that Immergut downplayed the extent of the violence. On Tuesday, the appeals court said the 2-1 ruling issued Oct. 20 will be reconsidered by a larger panel of judges.

Unlike those early rulings, which focused on temporary orders blocking the deployment, the trial starting Wednesday will result in a judgment on the merits of Oregon’s claims. Any verdict will likely lead to a new round of appeals.

Immergut and the two appeals court judges who paused her ruling were all appointed by Trump.

Los Angeles

In June, Trump deployed 4,000 National Guard troops and 700 Marines to Los Angeles, saying it was to protect federal property and personnel amid protests over high-profile immigration sweeps and raids. California sued, resulting in wins and losses for both sides on preliminary issues as the case has volleyed between a trial judge and the appeals court. Troops remain on the ground for now.

US District Judge Charles Breyer has issued a final ruling on one element of the California case. Following a trial, Breyer ruled in September that the deployment violated a more-than century old statute called the Posse Comitatus Act, which forbids the military from enforcing domestic laws except during limited circumstances such as an insurrection. His order, which focused on the scope of what troops on the ground can do, was paused by the 9th Circuit appeals court. That case is ongoing.

Breyer, who sits in San Francisco federal court, has yet to address whether the deployment was legal to begin with — the issue now being addressed in Portland.

Chicago

In Chicago, state and local leaders sued to block Trump’s attempt to deploy troops to the city. The judge handling the case issued a temporary order blocking the deployment for the duration of the suit. After the administration appealed, the 7th US Circuit Court of Appeals said Trump could retain control of the troops but could not deploy them while the lawsuit proceeds.

Trump then filed an emergency request with the US Supreme Court seeking authority to immediately deploy troops in Chicago. It was the first time the justices had been drawn into the dispute over Trump’s effort to deploy troops.

The Supreme Court on Wednesday suggested it was struggling with the case, asking the two sides to submit additional briefs on one aspect of the federal law that governs National Guard deployment by the president.

The law says the president can call state National Guard members into service when the US is facing a “rebellion or danger of rebellion” or the president “is unable with the regular forces to execute the laws of the United States.” The new Supreme Court request asks the litigants to address whether “regular forces” refers to the US military and explain what the implications of that interpretation would be.

The new briefing scheduling runs through Nov. 17, indicating the justices won’t rule on Trump’s request until at least then.

Washington DC

In Washington, where the president has authority over National Guard troops because it isn’t a state, Trump in mid-August deployed about 2,300 armed troops across the nation’s capital to fight violent crime. The District of Columbia sued over the troops’ apparent law enforcement function, alleging violations of the Posse Comitatus Act.

DC officials have described the situation as an involuntary “occupation.” A judge heard arguments on Oct. 24 on whether to block some or all of Trump’s deployments in Washington while the case proceeds. A ruling hasn’t yet been issued.

The case is State of Oregon v. Donald Trump, 3:25-cv-01756, US District Court, District of Oregon (Portland).

(Updates with new Supreme Court request in 21st paragraph.)

--With assistance from Zoe Tillman and Greg Stohr.

To contact the reporters on this story:
Erik Larson in New York at elarson4@bloomberg.net;
Madlin Mekelburg in Austin at mmekelburg@bloomberg.net

To contact the editors responsible for this story:
Misyrlena Egkolfopoulou at megkolfopoul@bloomberg.net

Steve Stroth, Peter Blumberg

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