Ignoring Case Law and the Constitution, Court Greenlights Trump’s Portland Troop Surge 

On the night of June 21, 1942, a Japanese submarine surfaced near the mouth of the Columbia River at the border between Oregon and Washington. The vessel, I-25, fired 17 shells from its 5.5-inch deck gun at Fort Stevens, an Army artillery post, then slunk away, having done no damage to its target.  

The following month, I-25 returned to the attack, launching its floatplane, flown by Warrant Flying Officer Nobuo Fujita, on September 9 and September 29. The aircraft dropped four incendiary bombs on wooded areas, hoping to set fire to Oregon’s vast forests. That mission failed, too.  

In response to the Japanese attack, in September 2025, President Donald Trump federalized the Oregon National Guard.  

Does that make sense?  

The claim that the National Guard must be federalized in 2025 to repel Japanese bombardment in 1942 makes as much sense as the government’s actual explanation of why, on September 29, the administration ordered the Oregon Guard placed under federal control. With the relatively straight faces that distinguish Trump administration lawyers, the government told the Ninth Circuit Court of Appeals, that the federalization—an aggressive takeover of state resources allowed by statute only in extreme circumstances—was required because there had been scattered violence at demonstrations in Portland three months earlier, a fatal shooting on September 24 in Dallas (2,300 miles from the Rose City), and a violent demonstration on September 26 in Chicago (2,100 miles away).  

On Monday, this facial disfigurement spread to the federal bench, as a three-judge panel of the Ninth Circuit Court of Appeals proclaimed that these events—some remote in time, others remote in space—formed a basis for Trump to invoke 10 U.S.C. 12406, which permits the president to take command of state militias in the event of foreign invasion, “rebellion against the authority of the United States,” or disorder that renders them “unable with the regular forces to execute the laws of the United States.”  

The majority recites the record in Portland with the breathlessness of a Fox & Friends host; I could dispute it in detail, but to do so would be to dignify the panel majority’s per curiam opinion. There was no foreign invasion; there was no “rebellion;” there has been nothing to prevent Trump from protecting the small federal building that is the center of a one-block area where protesters have gathered nightly since June, in demonstrations that, having started violently, subsided by July.  

There is no excuse for the panel’s conclusion that Trump’s order “reflects a colorable assessment of the facts and law within a ‘range of honest judgment’” that the “regular forces” couldn’t keep order in that one-block area of Portland. This blindness can’t be blamed on partisanship alone. True, the two members of the panel who voted to uphold Trump’s order—Ryan D. Nelson and Bridget Bade—were nominated by Trump; but consider that the pair were reviewing a detailed opinion by District Judge Karin J. Immergut, who was also appointed by Trump and is nobody’s Democrat.  

In that opinion, Judge Immergut, a George W. Bush-nominated U.S. Attorney and a veteran of Ken Starr’s investigations, showed herself to be what lawyers pretend we want judges to be—a thorough and careful analyst who applies the law as it is to the facts as they are presented. In this case, the law consists of the “range of honest judgment” test, which was announced earlier this year by a different panel of the Ninth Circuit. In Immergut’s opinion, the facts did not relate to Dallas or Chicago or June 2025 or the Japanese failed bomb run over Fort Stevens, but to the situation of confronting Trump in September. On October 4, Immergut wrote that the administration’s orders were “untethered to the facts.” She added, “this is a nation of Constitutional law, not martial law.” 

Since that order, of course, a reign of terror has spread in the Rose City. ICE can certainly handle regular Americans, such as the 84-year-old Vietnam veteran and his 84-year-old spouse, both taken to the hospital after its agents knocked them to the pavement on October 3. But the protests have now swollen to encompass terrifyingly inflatable frog, unicorn, dinosaur, shark, and squirrel suits. (There’s even an inflatable suit that deceitfully makes a human standing upright appear to be a clown dancing on his hands.) The Unpresidented Brass Band, several dozen strong, marched in front of ICE headquarters dressed as bananas. Ever-alert ICE officers bowled over the band and busted a clarinetist. And of course, in what House Speaker Mike Johnson called “the most threatening thing I’ve seen,” hundreds of bicyclists on October 12 rode by the ICE outpost wearing no clothes at all.  

The panel’s per curiam opinion upholds a militarized response to this civic impudence by noting that the Department of Homeland Security had to bring in some out-of-state personnel to handle the June demonstrations. It also relies on—I am quite serious—a brutal “Notice of Zoning Violation” issued to DHS by the City of Portland on September 18 because DHS had illegally boarded up windows at its Portland facility. 

This is judicial “deference” to the executive that has lapsed into obsequious behavior. As I read it, I am embarrassed to be a lawyer.  

It’s hard to escape the conclusion that the aim of the troop interventions in California, Chicago, and Portland is a massive shifting of the civil liberties goal posts. To this administration and its supporters, protest itself is “violence” and “rebellion.” Vets using walkers, animal suits, naked bikers, non-military musicians, Molotov cocktails—each is a violent threat to order and the proper power of government; all must be met with what Trump called “full force.” There is no right to protest in public, and those who try it, regardless of military record, inflatable costume, or woodwind instrument played, should expect to be gassed, pepper-sprayed, beaten, and arrested—and perhaps, to hear Trump and Defense Secretary Pete Hegseth tell it, shot.  

That, at least for the moment, seems to be the law in the nine states of the Ninth Circuit, but the battle is not done. Judge Susan Graber (the lone Oregonian on the panel) wrote a stinging dissent: “today’s decision is not merely absurd. It erodes core constitutional principles, including sovereign States’ control over their States’ militias and the people’s First Amendment rights to assemble and to object to the government’s policies and actions,” she wrote. She also pointed out that, formally at least, the panel’s decision did not free the government to deploy the Oregon Guard on the streets. That’s because Judge Immergut had issued two temporary restraining orders—the first applied only to the Oregon Guard, and (when the administration tried to bypass the first by bringing in the California Guard) the second applied to any deployment of any Guard from anywhere. The government (and the panel majority) only appealed the first order. Still, in their briefing, they expressed the belief that negating the first order requires Immergut to negate the second one (or, perhaps, frees the government from complying).  

I hope Judge Immergut feels no haste in lifting the second order. That’s because the panel’s opinion may not be the last word of the Ninth Circuit on the issue. In her dissent, Graber notes the availability of en banc review. This is a procedure by which a majority of the active judges in the circuit can vote to “vacate” a panel opinion and grant re-hearing in front of a bench consisting of Chief Judge Mary H. Murguia and ten other randomly selected judges of the circuit. There are currently 29 active Judges on the circuit—16 Democratic appointees and 13 Republican choices, including 10 nominated by Trump.  

Those seemingly polarized numbers may not represent the actual odds: Immergut, a Trump appointee, contemplated facts and law and ruled against the administration—the way we teach in law school that a good judge must sometimes do. Her pains, however, earned her the accusation from Trump aide Steven Miller of “legal insurrection” and (weirdly enough) “the latest example of unceasing efforts to nullify the 2024 election by fiat.” Such rhetoric is undoubtedly part of a campaign to intimidate federal judges, Republican or Democratic. And of course, some judges are predisposed to obeisance: Judge Nelson of the panel wrote in a separate opinion that, as far as he is concerned, no court has jurisdiction to review Trump’s order ever, no matter what. Whether it is in response to a Japanese attack or an outbreak of cheating at marbles, the president can seize state militias and deploy them for any reason he pleases.  

This naked leader worship is, in its way, more honorable than the pretense that a zoning dispute over window treatments is the equivalent of the attack on Fort Sumter. But judicial complaisance should alarm us all. In her dissent, Judge Graber wrote,  

We have come to expect a dose of political theater in the political branches, drama designed to rally the base or to rile or intimidate political opponents. We also may expect there a measure of bending—sometimes breaking—the truth. By design of the Founders, the judicial branch stands apart. We rule on facts, not on supposition or conjecture, and certainly not on fabrication or propaganda. I urge my colleagues on this court to act swiftly to vacate the majority’s order before the illegal deployment of troops under false pretenses can occur. Above all, I ask those who are watching this case unfold to retain faith in our judicial system for just a little longer. 

I was raised in that faith, and I will try to do as Judge Graber asks—at least, as reporters covering the courts have learned to say, for now.  

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