Trump National Guard use in Oregon, Illinois faces legal court tests

President Donald Trump’s use of the National Guard in Oregon and Illinois faced dual tests in court this week as he claimed his administration was obstructing federal immigration enforcement in the two Democratic-led states.

Government lawyers sought to justify the deployment of the National Guard in Portland and Chicago, drawing on numerous constitutional provisions and court precedents. While some legal experts say the law is on the president’s side, others worry that Trump is threatening state sovereignty.

Democratic leaders responded with anger and resentment to Trump’s attempts to send federal troops into their districts. Chicago Mayor Brandon Johnson has established “ICICE-FREE zones” throughout Chicago to prevent federal agents from using any city-owned property in their ongoing operations. Conservative critics have likened this action and similar opposition by Democratic leaders to the Trump administration to attempts to override federal law by harkening back to the 19th century.

Lawyer and conservative commentator Josh Hammer wrote of X: “Abraham Lincoln of Illinois had some ideas about how to deal with this John C. Calhoun-like ‘nullification.’

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South Texas College of Law professor Joshua Blackman said the federal government does not need permission from states to defend federal facilities. The Trump administration’s position is that it should deploy the National Guard to protect federal personnel and Immigration and Customs Enforcement facilities.

Speaking to Fox News Digital, Blackman cited McCulloch v. Maryland, which found Maryland could not tax a national bank created by Congress. “This is a principle that goes back to the beginning of the Republic,” he said, pointing to the Maryland case.

The high court said in that case that allowing a state to impose such a burden on a federal agency would violate the Constitution’s supremacy clause, which says federal law trumps state law.

Need for National Guard

In a series of oral arguments before the U.S. Court of Appeals for the 9th Circuit this week, a Trump administration lawyer argued that unrest in Portland over ICE activity justified the deployment of nearly 200 National Guard troops.

“For months, the ICE facility in Portland and the federal law enforcement officers working there have faced a steady stream of violence, threats of violence, and harassment from violent agitators determined to thwart federal immigration enforcement,” said Eric McArthur, speaking on behalf of the Justice Department.

McArthur argued that the sedition act, which Trump used to federalize the National Guard with which governors share authority, could be applied in those cases.

He also said the courts had no say in the government’s assessment of Trump’s need for the military. Blackman made a similar point.

“The law allows the president to make a decision on need. It’s not clear to me that a court would second-guess that,” Blackman said.

States find immigration enforcement ‘frustrating’

The Trump administration cited in court documents Neagle v. 1890, which found that the president has the authority under the Constitution’s diligence clause to “take care” of the enforcement of federal laws, including doing what is necessary to protect those who enforce immigration laws. He also cited the Cunningham case.

In Neagle, a U.S. marshal shot and killed a man who was attacking a Supreme Court justice, and the Supreme Court ruled that the State of California could not sue the sheriff for the murder because the police chief was protecting a federal officer.

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facade of the Supreme Court (Drew Angerer/Getty Images)

Blackman said states have been making federal immigration enforcement “frustrating” for years, and these blue state lawsuits seeking to question the presence of the National Guard are an example of that.

He said states’ resistance “doesn’t quite rise to the level of override” as it did when states in the South tried to block integration of segregated schools, but that it was “in the ballpark.” If states defy court orders, that could escalate problems, Blackman said.

Cases that could move to the Supreme Court, especially if local courts rule against Trump in the coming days, could help sharpen the dividing line between state and federal authority over law enforcement.

Policing falls under ‘state responsibilities’

Matt Cavedon, director of the CATO Institute, also said that in these cases, like Oregon and Illinois, the 10th Amendment comes into play, meaning the Trump administration typically cannot assume a state’s law enforcement responsibilities.

Cavedon also said that, in his view, it was unusual for a Republican government to embrace a broader view of federal power.

The Department of Homeland Security is criticizing Illinois Democratic Gov. J.B. Pritzker (R) for not being proactive in responding to last week’s chaotic anti-ICE protest in Broadview, Illinois. (Anna Moneymaker/Getty Images and Jon Stegenga via Storyful)

“It’s generally not conservatives who argue that the president has a lot of uncounted federal authority, especially in a domestic context,” Cavedon told Fox News Digital.

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Cavedon said the incidents in the two states were “really fundamental issues of public safety and security that are at the heart of a state’s responsibilities.” Oregon and Illinois leaders made similar claims that nothing criminally extraordinary had occurred that would warrant National Guard intervention.

“I think the 10th Amendment answers one question: All powers not vested in the federal government are reserved to the states in turn,” Cavedon said. he added.