Oregon Sues Trump Administration Over 'Unlawful' National Guard Federalization
The administration ordered the federalization of 200 Oregon National Guard members for 60 days, citing the same suspect legal authority used to send troops to California earlier this year.
President Donald Trump's efforts to be the "law and order" president could soon be ruled illegal. Oregon has filed suit against the Trump administration and is seeking a temporary restraining order to block the federalization of the state's National Guard members. The lawsuit, which was filed Sunday, comes one day after Trump announced he would federalize Oregon National Guard members and send them to Portland, Oregon.
"At the request of Secretary of Homeland Security, Kristi Noem, I am directing Secretary of War, Pete Hegseth, to provide all necessary Troops to protect war-ravaged Portland, and all of our [Immigration and Customs Enforcement] ICE facilities under siege from attack by Antifa, and other domestic terrorists," Trump posted on Truth Social on Saturday. "I am also authorizing Full Force, if necessary." The decision comes after weeks of nightly protests in front of a Portland ICE facility.
In response, Hegseth issued a memorandum on Sunday ordering the federalization of 200 Oregon National Guard members "to protect [ICE] and other U.S. Government personnel…and to protect Federal property, at locations where protests against these functions are occurring or are likely to occur" for 60 days. "The memo cited the same legal authority that Trump used to send 4,000 National Guard troops to Los Angeles in June," according to The Washington Post. A federal judge recently ruled that this deployment broke federal law, but left open the question of when a president can deploy military forces to protect federal property. Litigation in that case is still ongoing after the Trump administration appealed.
The order comes despite Oregon Democratic Gov. Tina Kotek's opposition. "When the president and I spoke…I told him in plain language that there is no insurrection or threat to public safety that necessitates military intervention in Portland or any other city in our state," Kotek said in a statement. "Despite this—and all evidence to the contrary—he has chosen to disregard Oregonians' safety and ability to govern ourselves," she continued. "This is not necessary. And it is unlawful. And it will make Oregonians less safe."
The lawsuit, filed in the United States District Court for the District of Oregon, argues that Hegseth's memo is patently unlawful. Under federal law, the president can only federalize National Guard members "in circumstances involving a foreign nation's 'invasion,' an outright 'rebellion,' or where the President has been 'unable with regular forces' to execute Federal Law through ordinary means," according to the complaint. Should one of those circumstances occur, "the President 'shall' issue any orders to a National Guard 'through' that state's governor." Plaintiffs assert there is no such invasion, rebellion, or inability to execute federal law, and local law enforcement remains equipped to monitor and respond to "the small ongoing ICE-facility protests."
The complaint also argues that the Trump administration is in violation of the Posse Comitatus Act, which forbids the use of the military for law enforcement purposes, "except in cases and under circumstances expressly authorized by the Constitution or Act of Congress."
The order may also violate the 10th Amendment, which is meant to balance the power between the state and federal governments. Generally, powers not delegated to the federal government by the Constitution are reserved to the states, "including the authority to promote safety at protests and deter violent crime," according to the complaint.
"Oregon communities are stable, and our local officials have been clear: we have the capacity to manage public safety without federal interference," Oregon Attorney General Dan Rayfield said in a statement. "What we're seeing is not about public safety, it's about the President flexing political muscle under the guise of law and order, chasing a media hit at the expense of our community."
The federalization of Oregon's National Guard members is just Trump's newest attempt at becoming, as Reason's Jacob Sullum put it, a "nationwide crime fighter," despite strong limitations on the federal government's police powers to address local crime. Just as Los Angeles before it, the use of troops to police Portland could soon be ruled illegal by a judge. In the meantime, Trump is moving forward with plans to send troops and federal agents to major cities around the country, and redefining the presidency to mean he has "the right to do anything [he wants] to do."
