Ours is a Nation of Constitutional Law, Not Martial Law
October 8, 2025
Those words of rebuke from U.S. Federal District Judge Karin Immergut to President Donald Trump, who nominated her to the federal bench, might seem like an unnecessary reminder to most Americans raised in a civics tradition that teaches the supremacy of the Constitution and the president’s subordination to it. But adherence to the supreme law of the land cannot be taken for granted when it represents an impediment to Trump’s goals.
On October 4, Judge Immergut issued a ruling that blocked Trump’s order calling up 200 National Guard troops in Oregon, which was based on his false characterization of Portland as a “war-ravaged” city, a hellscape of violence and arson, “under siege from attack by Antifa, and other domestic terrorists.” Trump’s misleading description of Portland in October of 2025 is attributable, in part, to the fact that he has been viewing news clips of the sporadic violence that broke out in the City of Roses in May of 2020, in the wake of the murder of George Floyd, who died at the hands of a Minneapolis police officer. Those sporadically violent protests in Portland in 2020, however, are not at all comparable to the current peaceful protesters in Portland, who complain of the treatment of undocumented immigrants.
With few exceptions, according to Portland law enforcement officials and reporters on the ground, current protests are peaceful, faithful to the law, and thus wholly entitled to First Amendment protections of speech and assembly. Trump’s false portrayals of protesters’ behavior in a small area in southwest Portland, where the Immigration and Custom Enforcement facility is located, Judge Immergut said, “are untethered to the facts” and risk unconstitutional military rule.
The facts on the ground are critical to the question of the legality of Trump’s deployment of the Oregon National Guard, and his subsequent order to send members of the California National Guard to Portland, to circumvent Judge Immergut’s prohibition, which she also blocked. For legal justification, Trump has invoked Title 10 of the U.S. Code, which pertains to the military. Trump relied on this statute in June when he called up the California guard and active-duty Marines, but U.S. District Judge Charles Breyer held that he had acted illegally, on the same reasoning employed by Judge Immergut: his false description of violence in Los Angeles was not grounded in the facts. It’s likely that a federal judge in Chicago, who will hear on Thursday a legal challenge brought by Governor JB Pritzker and Chicago Mayor Brandon Johnson, to Trump’s deployment of the Texas National Guard to Illinois, will reach the same conclusion and render the same ruling.
Title 10, Section 12406, sets forth three statutory conditions that permit a president to federalize a state Guard: when the nation has been “invaded or is in danger of invasion by a foreign nation,” when “there is a rebellion or danger of rebellion,” or when “the president is unable with regular forces to execute the laws of the United States.”
A court reviewing a presidential order must determine whether the president’s decision to federalize the Guard “reflects a colorable assessment of the facts and law within a ‘range of honest judgment.’” Courts, historically, have been deferential to presidential assessments of national security threats, but within limits, lest judges become rubber stamps for executive orders. Judge Immergut checked the “no” box on each of the conditions. Nobody’s fantasy world is vibrant enough to believe an invasion is at hand, nor is it conceivable that the small group of Portland protesters constitutes a rebellion. Similarly, there is no colorable interference with the enforcement of the laws. Pity the poor Trump attorney whose defense collapsed on his argument that, because a shooter fired bullets at an ice facility in Dallas, Portland needed federalized troops.
Judge Immergut was likely astonished that an event 1,500 miles from Portland could be invoked to justify an order to send guardsmen into Portland. She noted that a few of the protesters’ acts might have crossed the line, but they occurred three months ago. In any case, they were readily handled by local law enforcement and did not require federal assistance. A “range of honest judgment” should not be understood as a blank check. “Facts,” John Adams said, “are stubborn things.” Indeed, they should be when a court determines, as it has in Portland, that Trump has acted illegally.
-David Adler