Given the recent Supreme Court ruling that (surprisingly!) said Trump did not have the executive power to commandeer National Guard troops to aid and abet law enforcement/deportation efforts in Illinois, this ruling [PDF] from the Ninth Circuit Appeals Court was, perhaps, inevitable.
If it’s illegal to do it in Illinois, it’s equally illegal in California (as well as Oregon and any other state the administration has targeted). It may still be legal in Washington DC, but it’s probably only a matter of time before that deployment of National Guard troops (especially those from other states) is declared equally illegal.
The extremely short order by the Appeals Court vacates the stay it had placed on the lower court’s ruling in favor of the rule of law (which is, of course, a ruling against the Trump administration), allowing it to take force. It only runs two pages, but it does contain at least one surprising element: capitulation by Trump’s DOJ.
On December 23, 2025, this court issued an order directing defendants to file a supplemental brief “explaining why the partial administrative stay should not be lifted” in light of the Supreme Court’s decision in Trump v. Illinois, No. 25A443 (U.S. Dec. 23, 2025).
Defendants filed their supplemental brief on December 30, 2025. Defendants represented that “[w]ithout prejudice as to any other arguments defendants may present, defendants do not oppose lifting of the partial administrative stay and hereby respectfully withdraw their motion for a stay pending appeal.”
Earlier on Wednesday, Mr. Trump said he was, for now, abandoning his efforts to deploy the Guard in Los Angeles, Chicago and Portland, Ore. But he suggested that the administration may deploy them again the future.
“We will come back, perhaps in a much different and stronger form, when crime begins to soar again — Only a question of time,” Mr. Trump wrote on Truth Social.
There’s the patented Trump bravado — something that runs on a clean blend of bigotry and ignorance. Because this loss came at the hands of SCOTUS, administration officials are unable to deploy their usual “activist judge” bitching since the activist judges in the Supreme Court are mostly MAGA-cooked.
And they can’t claim this is the “liberal” Ninth Circuit going rogue, since its ruling is based entirely on the precedent set by the nation’s top court. All that’s left to do is the sort of social media sour grapes shit Trump is known for. At least until the administration decides to break every pane of glass in the Overton Window and just start turning every “Democrat” city into the Kent State campus.
But until that happens, the threats of bringing “liberal” states to heel by commandeering their National Guard are as empty as the heads of the administration’s most powerful members.
The Trump administration, for all intents and purposes, declared war on Chicago back in September. It was inevitable that Chicago and the state of Illinois would eventually be targeted by Trump, what with its Democratic leadership and Trump’s faux concerns about gun violence. Less than a month into his second presidential term, the administration sued the state and city of Chicago in hopes of forcing it to aid and abet Trump’s mass deportation programs.
The unofficial declaration of war (albeit one that specifically stated in an Truth Social that “Chicago about to find out why it’s called the Department of WAR”) was followed by even more extreme bullshit by the president: a call for the arrest of Illinois governor J.B. Pritzker and Chicago mayor Brandon Johnson for “failing to protect [ICE] officers.”
Meanwhile, ICE just kept losing. Its tactics in Chicago violated prior consent decrees, which led to judges freeing detainees almost as fast as ICE could detain them. On top of that, ICE, CBP, and an assortment of federal officers violated rights on a daily basis, resulting in even more rulings against the administration.
But all of these lower court rulings are pretty much meaningless if they’re just going to be overturned by the Trump’s ace in the hole: the fully compromised majority of the Supreme Court. The state sued the administration to block its commandeering of Illinois National Guard troops. The administration lost at the lower levels, prompting a review by the nation’s top court.
We can breathe a bit easier for the moment. SCOTUS says the administration can’t take control of the National Guard… at least not with the arguments it’s currently making. The government argued that its definition of the term “regular forces” in support of its National Guard takeover referred to “civilian law enforcement officers,” i.e., federal officers from ICE, CBP, Federal Protective Services, etc. The Supreme Court says the government is using the wrong definition. From the decision [PDF]:
We conclude that the term “regular forces” in §12406(3) likely refers to the regular forces of the United States military. This interpretation means that to call the Guard into active federal service under §12406(3), the President must be “unable” with the regular military “to execute the laws of the United States.”
Because the statute requires an assessment of the military’s ability to execute the laws, it likely applies only where the military could legally execute the laws. Such circumstances are exceptional: Under the Posse Comitatus Act, the military is prohibited from “execut[ing] the laws” “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” 18 U. S. C. §1385. So before the President can federalize the Guard under §12406(3), he likely must have statutory or constitutional authority to execute the laws with the regular military and must be “unable” with those forces to perform that function.
The circumstances aren’t what the administration claims they are. And if they are getting close to meeting Trump’s exaggeration of anti-ICE protests, etc., then he has the obligation to bring this before Congress, rather than unilaterally declaring everything to be so completely out of control, he’s practically obligated to take control of local National Guard units.
Despite his constant blustering and endless social media rants, the administration has yet to justify this bold, unprecedented use of military force to help handle immigration enforcement.
At this preliminary stage, the Government has failed to identify a source of authority that would allow the military to execute the laws in Illinois. The President has not invoked a statute that provides an exception to the Posse Comitatus Act. Instead, he relies on inherent constitutional authority that, according to the Government, allows him to use the military to protect federal personnel and property. But the Government also claims—consistent with the longstanding view of the Executive Branch—that performing such protective functions does not constitute “execut[ing] the laws” within the meaning of the Posse Comitatus Act. If that is correct, it is hard to see how performing those functions could constitute “execut[ing] the laws” under §12406(3).
That means the injunction delivered by the Illinois federal court remains in place. The government is welcome to make other arguments at the lower level in hopes of getting this injunction lifted. But for now, Trump has lost at the highest level — and the one he most expected to have his back no matter what.
There are additional opinions attached to this very short majority ruling. The first is Justice Kavanaugh’s rather bitter concurrence. The most remarkable part of his addition to this ruling is a footnote that makes it pretty clear he’s chafing a bit after becoming part of the unofficial legal parlance. An earlier ruling of his said it was perfectly fine for federal officers to treat skin color or accented English as reasonable suspicion for a stop. The kind of stops ICE performs most frequently are now known as “Kavanaugh stops,” now that the Supreme Court (actually just Kavanaugh spouting off in the shadow docket) has determined “Terry stops” are too respectful of rights.
The State and the Government disagree about whether the immigration officers have violated the Constitution in making certain immigration stops and arrests. The basic constitutional rules governing that dispute are longstanding and clear: The Fourth Amendment requires that immigration stops must be based on reasonable suspicion of illegal presence, stops must be brief, arrests must be based on probable cause, and officers must not employ excessive force. Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity. Cf. Whren v. United States, 517 U. S. 806, 813 (1996) (“[T]he Constitution prohibits selective enforcement of the law based on considerations such as race”).
Hmm. That’s certainly not what he said just a couple of months earlier. Oh, and Kavanaugh thinks the majority goes too far in its narrow reading of the statue. He proposes a hypothetical that sure sounds a whole lot like what went down in DC on January 6, 2021:
Consider a hypothetical example. Suppose a mob rapidly gathers outside the U. S. Courthouse in Philadelphia in response to an unpopular decision (or to influence the outcome of a pending matter). Suppose also that the mob is threatening to storm the courthouse and attack the federal judges, prosecutors, and other personnel inside, and to damage or burn down the building, thereby preventing the execution of federal law. Suppose further that U. S. military forces cannot readily mobilize to deploy to the site in time, that the local police and federal court security officers are outnumbered, and that the President wants to federalize National Guard units to protect the courthouse and the judges, prosecutors, and other personnel. Under the Court’s order today, even in those circumstances the President presumably could not federalize the National Guard under §12406(3).
Come on, Brett. Don’t play dumb. The storming of a federal buildingalready happened and it was never a question of whether Trump could do anything about it, but rather a question of if he would do anything about it. We already have that answer, so this speculative theory only works when a president is more concerned about protecting people other than himself when the shit goes down. And if the administration reads between the lines of this hypothetical, it’s going to see a way to wash its hands of any responsibility if the next election results in the Democratic party taking back the Oval Office.
For now, the administration isn’t allowed to send National Guard units to Chicago. It has also already been blocked from doing so in Portland, Oregon. If Trump wants to use military troops to backstop his massively unpopular mass deportation efforts, he’s going to have to start declaring war on some “red” states, where he’s more likely to find state officials willing to deploy troops on his behalf. If he really wants this martial law thing to take off, he’s going to have to do it everywhere, rather than just in places run by people he doesn’t like.
When President Donald Trump told reporters on Sept. 5 he’d started looking at sending the National Guard to Portland, Oregon, he said it was because of something he saw on television.
He said the city was being destroyed by paid agitators. “What they’ve done to that place, it’s like living in hell,” he said, a comment that became an internet meme as some Portland residents juxtaposed it with tranquil images of the city.
Trump didn’t say which channel he watched; he said at one point he saw something “today” and at another “last night.”
The evening before, on Sept. 4, Fox News aired a two-and-a-half-minute segment spotlighting protests outside a federal Immigration and Customs Enforcement field office in Portland. Similar footage aired the morning of Trump’s remarks. The president went on to announce Sept. 27 on Truth Social that he would send troops, saying that he was “authorizing Full Force, if necessary.”
He later said he’d told Oregon’s governor, Tina Kotek, that “unless they’re playing false tapes, this looked like World War II. Your place is burning down.”
ProPublica examined months of Fox News’ coverage and reviewed more than 700 video clips posted to social media by protesters, counterprotesters and others in the three months preceding the Sept. 4 broadcast.
The review found that the news network repeatedly provided a misleading picture of what was happening in Portland.
As The Guardian and The Oregonian/OregonLive have reported, Fox News on Sept. 4 used footage from the 2020 protests after the police killing of George Floyd and said it was from 2025. We found two clear cases from that night as well as one that seemed to match a scene filmed at a key site of the 2020 protests. Fox also mislabeled two other dates of actions shown on screen, and one broadcast implied that a protest from elsewhere was happening in Portland.
Fox News chyrons about Portland the week of Trump’s remarks carried phrases like “violent demonstrators,” “protesters riot,” “anti-I.C.E. Portland rioters” and “war-like protests.” One host said protesters were attacking federal officers.
This portrayal of protesters as routinely instigating violence or rioting was also misleading.
As ProPublica reported last week, most clashes between protesters and police before the Fox News segment did not result in any criminal charges or arrests alleging protesters committed violence. What’s more, based on news releases from federal and local authorities, charges and arrests for assault, arson or destruction of property were almost entirely confined to a period that ended the night of July 4.
Videos after that date captured numerous images of federal officers forcefully moving in on protesters without corresponding criminal charges alleging protester violence.
A spokesperson for Fox News did not respond to ProPublica’s requests for comment.
The Department of Homeland Security did not answer requests to comment on its officers’ tactics.
White House spokesperson Abigail Jackson said of action on the ground in Portland: “This isn’t a peaceful protest that’s under control, like many on the left have claimed, it’s radical violence. President Trump is taking lawful action to protect federal law enforcement officers and address the out-of-control violence that local residents have complained about and Democrat leaders have failed to stop.”
Here’s how Fox News’ coverage of the Portland story was misleading.
Fox News Said It Was 2025. It Wasn’t.
Protests in 2020 in the wake of Floyd’s murder by a police officer attracted large, sometimes violent crowds to Portland — along with a federal law enforcement response authorized by Trump.
The protests outside the ICE facility have typically been far smaller. Still, Fox spliced footage from 2020 into its coverage this year and claimed it was from 2025.
The Fox News correspondent in the segment that aired the night Trump was watching TV said: “On this night in late June, police used tear gas.”
A Sept. 4 Fox News segment aired footage from 2020. Video by Joanna Shan/ProPublica
The accompanying image appears to be not from the ICE building but from the federal courthouse in downtown Portland, more than a mile away. A nearly identical scene was shown in a Fox News video five years earlier. Footage that aired Sept. 4, shot at a slightly different angle, blurs out spots where graffiti was visible on the building in Fox’s July 2020 broadcast.
Almost immediately after showing the courthouse scene, the segment cuts to another image as the correspondent says, “federal police used tear gas and flashbangs.”
On screen at that moment is a U.S. Navy veteran who was pepper-sprayed and repeatedly struck with a baton. But it didn’t happen in September 2025. The video was posted on social media on July 18, 2020.
A Sept. 4 Fox News segment aired a clip originally posted to X on July 16, 2020. Video by Joanna Shan/ProPublica
The Fox News segment about the ICE protests soon shows an American flag burning.
That image was posted on social media July 16, 2020.
The location: the base of a downtown Portland statue more than a mile away from the ICE building where protests are happening in 2025.
After mislabeling 2020 events as 2025, Fox’s Sept. 4 evening broadcast explicitly drew a connection between the two periods.
“The protest chaos, which began with riots aimed at social justice in 2020, has severely damaged Portland’s reputation,” the correspondent said.
Fox’s Sept. 4 broadcast explicitly drew a connection between 2025 and the 2020 protests after the police killing of George Floyd. Fox News. Screenshot by ProPublica.
The dramatic footage at this moment shows fires in the street and was broadcast on Fox on Aug. 19, 2020, the day after a crowd smashed through windows and set items on fire in the headquarters for the government of Multnomah County, where Portland is located.
Fox’s Sept. 4 broadcast used footage originally broadcast Aug. 19, 2020. Fox News. Screenshot by ProPublica.
We don’t know for certain which broadcast got Trump thinking about Portland. The White House did not respond to questions about what Trump watched. But the president said on Sept. 5 that what he’d seen about Portland on TV was “unbelievable.”
“I didn’t know that was still going on,” he said. “This has been going on for years.”
The reality: Portland’s 2020 social justice protests, which resulted in hundreds of arrests and continued for months, turned sporadic by early 2021. Protests in years since have led to occasional property damage, but nothing in Portland has matched the scale of events that followed Floyd’s death.
Portland police Chief Bob Day said at a Sept. 29 press conference that the city had been inaccurately portrayed through the lens of the protests in 2020 and 2021.
“What’s actually happening, and the response we’re seeing both from Portlanders and from the Portland Police Bureau,” Day said, “is not in line with that national narrative. And it is frustrating.”
A Riot That Wasn’t
In a Sept. 2 segment featuring the video from a day earlier, anchor Bill Hemmer said it shows “riots raging.” Anchor Trace Gallagher teased another Sept. 2 news segment by once again showing the video, saying, “It’s a riot outside a Portland ICE facility.”
On a Sept. 2 segment featuring Katie Daviscourt’s Sept. 1 video, anchor Bill Hemmer describes the Sept. 1 protests as “riots raging.” Videos show the violent moments that happened after federal police advanced on protesters. Fox News
The Sept. 4 segment shows Julie Parrish, an attorney for a neighbor of the ICE facility, accusing Portland police of saying, “Meh, we’re just gonna let violent rioters do this for 80 straight nights.”
The physical behavior of protesters that was captured on the video is not violent. The camera instead shows federal agents advancing on them. In the moments before officers tossed munitions into the crowd, videos show, one protester was blowing bubbles. The Portland police did not declare a riot, a legal designation that allows for an elevated police use of force. (They declared a riot just once, a police spokesperson said, on June 14.)
The Sept. 1 protest had “little to no energy,” according to an internal Portland police summary, before federal officers dispersed the crowd to collect a prop guillotine that had been brought. Katie Daviscourt, a Trump-aligned commentator who filmed the clips, noted on X that protesters were having dance parties and that their main problems were “not leaving restricted areas, burning a flag, and possessing a deadly object (guillotine).”
ProPublica found a similar pattern for the three months before Fox’s Sept. 4 broadcast: clashes that on most days and nights had no criminal allegations of protester violence to explain them.
After dozens of arrests and charges were announced in June through July 4, federal prosecutors accused just three people of crimes at the ICE building in the roughly two months leading up to Fox’s Sept. 4 broadcast.
During that same two-month time frame, ProPublica’s review found numerous instances of police using force: videos from more than 20 days or nights with federal officers grabbing, shoving, pepper-spraying, tackling, firing on or using other munitions on protesters.
No local arrests or federal criminal charges were announced on these days or nights, and only a handful of dates corresponded with incidents of protester aggression later asserted by federal authorities in their legal case for sending troops.
Asked whether Fox News accurately represented her footage, Daviscourt said: “I stand by my four months of accurate reporting.”
Parrish told ProPublica she had collected evidence that “shows ongoing and persistent activity” outside the facility that under statute and police directive “would be considered riotous, unlawful assembly and/or disorderly conduct.” She declined to share this evidence, saying it was privileged as part of her client’s file.
Her lawsuit on behalf of a neighbor living near the ICE facility, which sought to require police to enforce Portland’s noise ordinance, was dismissed.
The Reappearing Neighbor
A Sept. 5 “Fox & Friends” segment showed a neighbor from an apartment building confronting protesters over noise, shouting at protesters: “Turn that (bleep) down, it’s midnight! … We the people need sleep!”
Fox said it happened Tuesday, which would have been Sept. 2. Co-host Ainsley Earhardt said, “This has been going on for months now, but a lot of this since Labor Day,” as the video shown on screen sandwiches footage of the neighbor between other scenes from the Labor Day protest.
“This is a chaotic city,” co-host Brian Kilmeade said.
Fox News. Screenshot by ProPublica.
The next day, the clip of the neighbor appeared again on Fox News. This time, the network said the footage was from Wednesday, or Sept. 3.
Fox News. Screenshot by ProPublica.
In reality, the confrontation was captured on video months before. Daviscourt published the video on June 29 on X.
On the two September nights that Fox said the neighbor’s confrontation happened, ProPublica’s review found no videos of violent clashes posted on social media, and federal authorities announced no arrests.
For example, according to a Portland police email from 11:22 p.m. on Sept. 3: “There are still about 20 people hanging around but only 4 were even on the sidewalk in front of the building.”
Misrepresentations Continue After Trump’s Guard Order
On Sept. 28, the day Trump’s order was implemented, a Fox News broadcast played a clip of Kotek saying that Guard troops were not needed in Portland, then immediately cut to a clip of a hectic scene of protesters clashing with police.
“Wish she could see some of those images,” the anchor said. Sarcastically, as a co-anchor chuckled, she added: “Look at that. Just a peaceful protest.”
A small box on the screen showed the footage wasn’t from Oregon.
We’ll see where this goes from here, but for the moment, this order [PDF], issued by federal judge Karin Immergut still stands:
For the above reasons, this Court concludes that Plaintiffs have demonstrated that Defendants violated 10 U.S.C. § 12406 and the Tenth Amendment and satisfy the requirements for a permanent injunction. Therefore, this Court PERMANENTLY ENJOINS Defendants Pete Hegseth, the U.S. Department of Defense, Kristi Noem, and the U.S. Department of Homeland Security from […] federalizing and deploying members of the National Guard in Oregon
This has already happened once. And, for reasons that went mostly unexplained by two of three judges ruling in favor of the administration, a stay was issued that allowed it to continue exploring its martial law options in a city Trump has already admitted he might have been lied to about in terms of civil unrest.
The judges blocking the injunction basically said we have to trust the government, even when it’s obviously lying to us — something pointed out in the sharp dissent written by the third judge in the case (Susan Graber). Her dissent noted that most of the protest involved people wearing inflatable animal costumes (and, memorably, nothing at all). It also noted the absolute dearth of calls from law enforcement for backup when dealing with Portland’s (non-threatening) protesters. Her dissent also pointed out how none of this could possibly add up to the clear and present danger the administration has used to justify the deployment of National Guard troops.
Judge Immergut makes many of the same points: there’s no real threat, the protests have been almost exclusively peaceful, and the government has lied so often it should not be granted judicial deference. The 106-page order practically dares the Ninth Circuit to again ignore the facts on the ground when it is inevitably appealed by the federal government.
For example, here’s the judge taking the government down a few notches (and suggesting contempt findings are perhaps just as inevitable as the administration’s routine disregard for legal precedent) for pretending it didn’t have time to comply with the first order while it simultaneously scrambled troops from out-of-state in an attempt to skirt the expected restraining order:
Ordinarily, this Court would be inclined to accept Defendants’ explanation for their violation of the First TRO [temporary restraining order] given that “the first shift” at the Portland ICE facility commenced prior to this Court’s issuance of the First TRO. However, in light of the following facts, this Court is deeply troubled by Defendants’ continued deployment of Oregon National Guardsmen at the Portland ICE facility in violation of the First TRO. In the seven hours that Defendants took to “convey the message” of the First TRO “to people on the ground,” Defendants simultaneously “convey[ed] the message” to the U.S. Army Northern Command to send 200 of the federalized California National Guard personnel in Los Angeles to Portland. In other words, Defendants had time to order and coordinate the transport of federalized California National Guardsmen from Los Angeles to Portland but needed more time to communicate with the Oregon National Guardsmen at the Portland ICE facility.
The dissent to the Ninth Circuit opinion — combined with the administration’s attempt to circumvent the court order blocking deployment of Oregon National Guard troops by sending in a bunch of troops from other states — has resulted in a successful petition for an en banc hearing by Judge Susan Graber. That means the government is far less likely to see its bluster, outright lies, and end around plays entertained by a far more representative group of Ninth Circuit judges.
Furthermore, the alleged “escalation” cited by the Trump administration is simply a lie, as those who’ve been on the ground (Portland Police Bureau officials) have already (credibly, according to the court) testified:
Any riotous activity affecting the Portland ICE building peaked in June and had subsided for months before the President’s September 27, 2025 callout of the National Guard to Oregon. Regarding the nature of the crowd and its behavior, this Court finds the following. First, the size of the crowds decreased dramatically from June to September. Second, the number of officers briefly increased in response to the peak activity in mid-June, but it quickly subsided and remained at a low steady state until September 27, 2025. Third, the crowd was not directed by an organized group. Fourth, members of the crowd were rarely armed. Fifth and finally, the crowd’s shift in focus from the ICE building and the federal personnel in June to counter protester disputes in September demonstrates that much of the activity since mid-June had little to no effect on the ICE building and federal operations.
And these are things that were happening most of time, according to local law enforcement leaders:
From September 19 to September 28, immediately before the National Guard callout, there was “[n]othing much” going on outside the ICE building. Throughout the protests, PPB Commander Schoening testified that protesters wore “inflatable costumes.” Similarly, PPB Assistant Chief Dobson described “folks in costumes” at the ICE Facility, as well as “other almost festive-type events going on down there,” including “dance parties.”
Also: the government — the federal government, that is — can’t seem to stop lying:
To the extent that it lacks corroboration from other sources of evidence, the Court does not find reliable ICE/ERO Field Office Director Wamsley’s characterization of the damage to the Portland ICE Facility, which suggested damage was more extensive than that which is reflected in the rest of the record.
[…]
There is no credible evidence, however, that all the doors and windows of the ICE facility were broken. No other witness described damage to this degree, including Commander W.T., who was at the Portland ICE Facility every other week the entire summer. Additionally, Director Wamsley testified that she did not know whether there would be any photos of this damage or whether there was any documentation of the repair estimates.
It does it all the time, even when it has to know its lies will be exposed:
Furthermore, PPB reporting from June 14 show additional inconsistencies in the federal government’s version of events. PPB Captain Schoening’s activity log documented: “ICE calling saying they are barricaded in the building and fire lit. Difficult to get accurate information from them. What they say is happening is frequently contradicted by video feeds and subsequent activity. Air 1 shows no fire.” Also, shortly after they reported being barricaded, PPB observed an FPS employee exit a door and noted that FPS “ha[d] been using th[at] door regularly for employee ingress/egress. Th[at] door was reported earlier to be barricaded.”
You think that’s bad? Get ready for this one:
FPS [Federal Protective Services] reported a fire to PPB, but the “fire” turned out to be candles lit for a vigil set up by demonstrators.
In fact, most of the “violence” observed by federal officers was either unprovoked attacks by officers against protesters or instigated by Trump fans who rolled up on peaceful protests in hopes of picking a fight.
This Court finds that many reported disturbances at the ICE Facility after July 4 did not involve law enforcement at all. This Court also received evidence regarding disruptive behavior between individuals within the vicinity of the ICE building since June. Specifically, this Court received evidence regarding altercations between protesters and counter-protesters. Based on that evidence, this Court finds the following: Violence between protesters and counter-protesters occurred outside the Portland ICE building from June to September 27, 2025, but had, at most, a minimal effect on federal law enforcement’s protection of the building and federal personnel.
106 pages. Read it all. Lie after lie after lie from the administration and the small team of DOJ lawyers still willing to appease Trump, rather than seek justice:
As related to the time period immediately before the President’s callout of the National Guard, this Court heard testimony from FPS officers that PPB does not respond to their requests and that FPS stopped calling PPB altogether. The Court does not find this testimony to be credible.
[…]
The Court finds that there is no credible evidence that protest activities at the ICE facility created more than a minimal interference with Defendants’ ability to enforce Title 8 immigration laws in Portland. Director Wamsley testified herself that “altercations between protesters” do not “inhibit the execution of federal immigration law.”
There’s no “rebellion” happening here, the judge says, quoting the same law the administration is now abusing on a regular basis. There’s no concerted effort to seize control of federal property. There are no persistent attacks on federal or local law enforcement. There’s no organized group hoping to seize power. This is exactly the sort of thing this particular administration is incapable of handing: a persistent display of opposition that rarely, if ever, engages in the sort of behavior that might justify the deployment of military troops. The protesters are a fly the government can’t swat, whose mere existence is annoying enough the Commander-in-Chief and his immediate underlings have to constantly lie about to salvage their unconstitutional acts. And, despite all of their power, they’re losing this battle. Let’s see if the Ninth Circuit is willing to make this loss permanent.
President Donald Trump and officials in his administration say National Guard troops are needed in “War ravaged” Portland, Oregon, to protect a local Immigration and Customs Enforcement office that he described as being under siege.
But a ProPublica review found a wide gap between the reality on the ground and the characterizations by the president and the Department of Homeland Security, which said ICE facilities like Portland’s were under “coordinated assault by violent groups.”
We reviewed federal prosecutions and local arrests, internal protest summaries by the Portland Police Bureau, sworn testimony from local and federal officials as well as more than 700 video clips containing hours of footage posted to social media by protesters, counterprotesters and others. We focused on the three months before Sept. 5, when Trump made his first remarks about sending troops to Portland.
The evidence shows officers and protesters were indeed involved in incidents with varying levels of intensity on a little more than half the days. Protesters and counterprotesters exchanged blows at times. With some frequency, smoke and tear gas filled the air and shots from less-lethal police weapons could be heard.
There was no evidence of what could be termed a coordinated assault.
On most of the days or nights when officers and protesters clashed, local police and federal prosecutors ended up announcing no criminal arrests or charges — even though any number of crimes can be cited if someone commits violence against federal officers or property.
In addition, while protests continued across the summer, most of the alleged action by protesters that resulted in federal prosecution or local arrests ended two months before Trump said troops were needed in Portland.
While federal judges decide whether Portland protesters’ behavior constitutes a rebellion, ProPublica set out to examine the degree to which they were inciting unrest and the role that federal officers played. Video by Joanna Shan/ProPublica
A federal judge has temporarily blocked Trump’s deployment of the National Guard to Portland, saying that his administration had not proven that the protests can be fairly characterized as a rebellion, a risk of rebellion or an ongoing lack of order that prevents government officials from carrying out their duties.
Last week, the Justice Department argued in federal court that the last of these three categories — a breakdown of public order so severe that ICE officials can’t do their jobs — is what unfolded in Portland, justifying the president’s decision to federalize Oregon’s National Guard.
The judge is expected to issue a final ruling this week, and the case is expected to continue before the 9th U.S. Circuit Court of Appeals.
If the courts go against Trump, he has another tool that could bring troops: the federal Insurrection Act, which experts say has a lower bar to being used and could involve active-duty military.
While the courts deliberate, ProPublica set out to examine the degree to which protesters were fomenting unrest and the role that federal officers themselves played.
Two policing experts who reviewed videos said federal officers at times used force inappropriately, echoing a Portland police official who testified in court that federal officers were instigating the chaos night after night.
Brian Higgins, former police chief in Bergen County, New Jersey, and a lecturer at John Jay College of Criminal Justice, said some of what federal officers did in the video clips was not typical.
“My question would be, ‘If you used force, why did you not follow through with an arrest?’” Higgins said.
For instance, on Sept. 1, masked officers in combat gear responded to protesters who placed a prop guillotine on the sidewalk in front of the ICE building. The officers chased away the protesters with tear gas, smoke and other less-lethal weapons, grabbed the guillotine and hauled it inside. No criminal charges were announced.
“If there was nothing else to justify the officers coming out and doing this, you’ve got to scratch your head,” Higgins said.
Justice Department attorneys said in a court filing that the presence of the mock guillotine required federal officers “to exert physical force to keep order.” Videos show a protester blowing bubbles in the moment before federal police advanced on the crowd.
The scene of protesters dispersing and officers giving chase became the centerpiece of a Fox News broadcast on Sept. 4, the night before Trump said Portland’s protests had drawn his attention.
Our review showed that the force used against demonstrators had clearer provocation in initial protests. From the start of June to July 4, Portland police arrested 28 people, while federal prosecutors said they charged 22 with criminal offenses including arson and assault.
Abigail Jackson, a White House spokesperson, told ProPublica in a statement that the arson and assault charges show “this isn’t a peaceful protest that’s under control, like many on the Left have claimed, it’s radical violence.”
“President Trump is taking lawful action to protect federal law enforcement officers and address the out-of-control violence that local residents have complained about and Democrat leaders have failed to stop,” Jackson said.
But from July 5 through Sept. 4, the violence appeared to slow significantly. Portland police announced no arrests of protesters during this time, and federal prosecutors announced criminal charges against just three.
Only one was accused of a violent offense: felony assault for allegedly spitting in an officer’s face after an arrest for flying a drone around the building. The person pleaded guilty to a misdemeanor drone offense; the assault charge did not move forward. Another person’s misdemeanor charge, alleging failure to obey an officer, was also dropped. The case against the third person, another misdemeanor allegation of failing to obey, is proceeding.
In legal filings supporting the use of troops, federal officials described a handful of additional violent incidents from July 5 through Sept. 4. They said that protesters hit an officer with a stick on July 20, threw screws on the ICE facility’s driveway on July 24, pounded fists on vehicles on Aug. 9 and 11, threw rocks and a firework over the building’s fence on Aug. 16, injured two officers in an attack on Aug. 25 and provided directions online to an officer’s home on Aug. 28. No criminal charges were announced in these cases.
Source: Federal data represents criminal charges from news releases from the U.S. Attorney’s office. Portland police data shows arrests announced by the Portland Police Bureau. Note: Incidents shown by week.
During the roughly two months leading up to Trump’s Sept. 5 remarks, videos from more than 20 days or nights show federal officers firing on, grabbing, shoving, pepper-spraying, tackling or using other munitions on protesters. They deployed hissing cans of tear gas, sometimes sending clouds of the chemical irritant floating toward a nearby low-income apartment building.
No local arrests or federal criminal charges were announced on these days or nights, and only a handful of the dates corresponded with incidents of protester aggression asserted by federal authorities in their legal case for sending troops.
In most cases, videos from these events show masked federal officers using aggressive tactics that lack a clear reason.
On Aug. 13, an officer tackled a protester from behind. Rhein Amacher via Matthew Adams on X. Redaction in original video.
One federal officer runs and tackles an unsuspecting protester from behind on Aug. 13, causing what the man said in a legal filing was a head injury and concussion. The person was not charged with any crime.
In a clip from Sept. 6, the day after Trump’s remarks about Portland, a federal officer walking back into the ICE building turns, walks out of his way toward a protester and pushes the man so hard he falls to the ground and rolls over backward. The officer then continues inside the building.
On Sept. 6, an officer walked out of his way to push a protester so hard the person fell to the ground and rolled over. Rhein Amacher via X
Seth Stoughton, a law professor at the University of South Carolina who studies policing, reviewed videos from the protests at ProPublica’s request and said some of the federal officers’ uses of force looked “gratuitous.”
“Going out of your way to shove someone while you’re on the way back from arresting someone serves no purpose other than intimidation,” he said, “and intimidation is not a lawful government objective.”
A spokesperson for the Department of Homeland Security did not respond to emails requesting comment on its officers’ tactics.
Allegations of Protester Violence Subsided Over Time
There’s no doubt that the summertime protests were often confrontational, emotional and loud. Protesters, some dressed in black, often wore gas masks and shouted profanities at federal personnel. In June, some were also violent.
Five people faced arson charges after separate events on June 11 and 12 in which prosecutors said fires were set. One was in a trash can against the ICE building, while in another instance prosecutors said a protester used a flare to set fire to wood stacked against the front gate.
Videos from June 14 show a protester striking an officer in the head with a wooden stake that holds a protest sign. Another clip shows protesters using a stop sign as a battering ram on the front door of the ICE building.
On June 14, protesters rammed a stop sign into the ICE building’s front door. Throughout the month, protesters outside the facility were at times violent. Velly Ray via YouTube
Portland police declared a riot and made two arrests that day; federal prosecutors also said they charged three people with assault.
On June 24, a video shows someone waving a large knife at officers, being tased while running away and falling face first onto the sidewalk. Federal prosecutors filed charges against three people from that night’s protest: the person accused of wielding the knife, another accused of shining a laser pointer in an officer’s eye and one accused of hurling a gas canister back at officers, hitting one.
In addition, a Homeland Security news release from July 11 shows photos — without providing dates — of what the agency said were flyers posted in federal officers’ neighborhoods showing their names, images and addresses. The release said such information was also posted online.
Federal authorities have said protests led them to close the ICE building and work out of temporary office space from June 13 until July 7, after which the facility reopened. An analysis by Oregon Public Broadcasting found that immigration bookings continued, albeit at a slightly slower pace than average for Trump’s second term.
But violence initiated by protesters mostly subsided after July 4, based on charges or arrests announced by authorities and video reviewed by ProPublica.
The summer’s last criminal allegation of protester-on-officer violence — at least for anything other than spitting — came from a large Independence Day protest that led to federal criminal charges being filed against four people. They were individually accused of kicking an officer, throwing an incendiary device at officers, graffitiing the building and destroying fiber optic cables at the facility.
Evidence of protester violence for the rest of the summer is limited beyond the two misdemeanors and one felony charge announced by prosecutors.
In addition to the instances asserted by the government in court filings but not charged criminally, the FBI recently issued statistics that suggest dozens of people may have received citations. In the federal system, these are similar to traffic tickets and are generally issued for minor offenses. But when asked for details by ProPublica, the agency would not specify how many were issued or during what time frame.
Meanwhile, the use of force by federal officers continued.
Violence Without Violent Provocation
In most of the cases where videos captured police using crowd control tactics or other elements of force on protesters, there were neither announcements of criminal charges that followed nor allegations of protester violence made in the administration’s case for sending troops.
An official with the Federal Protective Service, which polices federal buildings, testified in court last week that federal officers use a loudspeaker to warn large groups to move. If they don’t, he said, officers physically move them.
Stoughton, the University of South Carolina law professor, said officers should use tear gas and other heavy chemical munitions sparingly when dispersing a crowd.
He added that many city police departments would be very hesitant to use these munitions “if it’s going to have this completely predictable environmental contamination on people who are utterly uninvolved with the protest.” In Portland, there’s an apartment building across the street from the ICE facility.
In addition, Stoughton said, police managing crowds ordinarily would first take time to engage people verbally, face to face, to try to get them to step aside.
“You typically don’t just want to jump right to higher levels of force,” Stoughton said, “because the point is to limit the potential for escalation.”
On two occasions shown on video, aggressive moves by officers appeared to be intended at least in part to allow them to seize protest symbols: a burned American flag that officers bagged and took indoors and the Sept. 1 display of a mock guillotine, an implement that 18th-century French revolutionaries used to decapitate royalty.
Video from the event captures someone playing a song by the Oakland hip-hop group The Coup with the chorus, “We got the guillotine, you better run.” An American flag can be seen burning at the guillotine’s base.
Stoughton said municipal police departments like those in Portland know they have to balance protesters’ First Amendment rights with public safety. “There is no more protected First Amendment interest than the ability to protest government action, to criticize the government,” he said.
A guillotine “can be purely symbolic,” he said. “That can be purely expressive.”
The Federal Protective Service incident commander that night, Will Turner, said in court that agents did not know the guillotine was a prop and thought it was real at the time. “We took it as an actual threat,” he said.
Objects like the guillotine or statements from protesters telling ICE agents to kill themselves appear to be protected speech, said Timothy Zick, a law professor at William & Mary Law School who studies public protest and the First Amendment, because they do not pose a true threat to officers.
It is “likely the sort of political hyperbole and heated rhetoric the Supreme Court has treated as protected speech,” Zick said. “The statements are likely to be considered part of a political protest.”
Notably, officers were sometimes able to clear crowds without aggressive tactics.
Footage on those occasions shows vehicles leaving the ICE compound without incident. Officers move out and onto the sidewalk, and protesters stay out of the way of the vehicles.
In one of those nonevents, as officers return to the ICE compound and the gates start to close, the thin crowd chants: “DHS — doesn’t have sex.”
A federal officer brings his hand to his mouth on the video.
He appears to blow a kiss.
What Happens Next
Trump’s order remains tied up in the courts.
Federal District Judge Karin Immergut blocked the deployment once, then again on Sunday, saying the Trump administration had “commandeered” the National Guard to quell protests that do not constitute a rebellion and had eased after a “high watermark of violence and unlawful activity” in June.
“The trial testimony produced no credible evidence of any significant damage to the ICE facility in the months before the President’s callout and no credible evidence that ICE was unable to execute immigration laws,” the judge wrote. “Protesters frequently blocked the driveway of the ICE building, but the evidence also showed that federal law enforcement officers were able to clear the driveway.”
Immergut said the deployment violated the 10th Amendment, which says that powers not given to the federal government by the Constitution are reserved to states. The judge said Trump “had no lawful basis to federalize these Oregon National Guardsmen.”
Earlier in the appeals process, two appellate judges who upheld Trump’s decision said protester violence from earlier in June was a relevant concern that must be considered in the case.
A panel of judges from the 9th Circuit is expected to hear arguments from both sides next.
To say the irony was lost on them would be to assume they ever thought some irony might exist. DC resident Sam O’Hara came across a bunch of out-of-state National Guard troops and put his own spin on their Trump-enabled interloping. As he followed the troops through the neighborhood, O’Hara engaged in protected expression — that being the recording of government employees… with a little musical accompaniment.
In the Star Wars franchise, The Imperial March is the music that plays when Darth Vader or other dark forces enter a scene or succeed in their dastardly plans. It is also the soundtrack of Sam O’Hara’s protest against the National Guard deployment in D.C.
Those troops arrived in the District in August 2025, after President Trump decided to flood D.C. neighborhoods with National Guard members from around the country. A few weeks passed, and yet the troops remained. Given the roughly 200-year-old tradition of civilian law enforcement in the United States, Mr. O’Hara was deeply concerned about the normalization of troops patrolling D.C. neighborhoods. And so, he began protesting the Guard members’ presence by walking several feet behind them when he saw them in the community. Using his phone and sometimes a small speaker, he played The Imperial March as he walked, keeping the music at a volume that was audible but not blaring. Mr. O’Hara recorded the encounters and posted the videos on his TikTok account, where millions of people have viewed them.
O’Hara did not impede the troops’ movement. He did not attempt to close the several-foot gap between him and them. He just followed behind them, playing a theme song the Trump administration likely would have approved of. In fact, we already know it considers itself to be the Empire. After all, just weeks ago it posted a video that portrayed immigration enforcement efforts as Darth Vader “cleansing” a spaceship of rebel soldiers. (Skip to 0:52 if you’re impatient.)
If the government itself thinks it’s Darth Vader and the rest of us are just rebel scum, those participating in Trump’s invasion probably shouldn’t be so bothered someone’s willing to memorialize their unwanted presence with what I assume is the song they hear in their heads every time they start chasing a day laborer across a Home Deport parking lot.
The out-of-state National Guard wasn’t impressed, however. Instead, the person who should have been the adult in the room decided he was going to tattle:
Ohio National Guard member Sgt. Devon Beck was not amused by this satire. On September 11, 2025, […] In less than two minutes, Sgt. Beck turned around and threatened to call D.C. police officers to “handle” Mr. O’Hara if he persisted. Mr. O’Hara continued recording and playing the music. Sgt. Beck contacted the Metropolitan Police Department (MPD). Defendant MPD Officers Brown, Campbell, Reyes-Benigno, and Lopez Martinez came to the scene and, in essence, did what Sgt. Beck had threatened, putting Mr. O’Hara in handcuffs and preventing him from continuing his peaceful protest.
Adding to idiocy of this interaction is that O’Hara had done the same thing on three previous occasions. Those times he was either greeted with laughter and smiles from the National Guard troops or ignored entirely. It was only Sgt. Devon Beck who couldn’t handle this alleged “harassment,” which was so far short of every definition of the word that the MPD officers had to make up a bunch of bullshit to justify their detention of O’Hara.
Defendant Officer Campbell immediately walked up to Mr. O’Hara, without conducting any investigation. He said to Mr. O’Hara accusatorily, “[i]f you’re harassing them”—at which point Mr. O’Hara interrupted to ask for Defendant Campbell’s badge number. After providing that information, Defendant Campbell said, “if you are assaulting them,” which again prompted Mr. O’Hara to interrupt, this time to say that he was not assaulting the Guard members but rather peacefully protesting.
Mr. O’Hara was correct. He was not harassing or assaulting the Guard members. He was, in fact, standing several feet away, recording them and playing the March. Nor had Mr. O’Hara assaulted or harassed the Guard members at any point during his interaction with them.
Officer Campbell also accused Mr. O’Hara of standing in front of the entrance to a store when, in fact, Mr. O’Hara was standing to the side of the entrance and not blocking anyone’s passage.
In response to Mr. O’Hara’s statements that he was engaged in protest, Officer Campbell said, “That’s not a protest. You better define protest. This isn’t a protest. You are not protesting.”
That is some dumb shit. The MPD is not under any obligation to respond to calls by the National Guard. The National Guard deployment definitely isn’t in the clear, legally-speaking. And since it’s not engaged in law enforcement efforts (because it definitely can’t do that legally), the MPD is not its backup.
But cops are cops. And this group of cops just kept copping and coping. The dumb stuff said by Officer Campbell was repeated by other officers until the whole thing ended with O’Hara handcuffed and taken to the station. Eventually he was released when people who actually knew better realized they didn’t actually have any reason to keep holding him. And if they didn’t have that, they certainly didn’t have any reason to detain/handcuff him in the first place.
It’s already terrible enough that this administration has, in essence, declared war on cities the president doesn’t like. Using local police power to aid and abet the incremental roll-out of martial law isn’t helping.
The ACLU’s summary of the complaint is on point, albeit perhaps too confident in its assumption that Trump (and his loyal lapdog of a Supreme Court) haven’t already turned us all into residents of a mostly constructed Death Star:
The law might have tolerated government conduct of this sort a long time ago in a galaxy far, far away. But in the here and now, the First Amendment bars government officials from shutting down peaceful protests, and the Fourth Amendment (along with the District’s prohibition on false arrest) bars groundless seizures.
The Supreme Court has already made it clear that suing federal officers (which I imagine will be expanded to cover federalized National Guard units) is a non-starter. And the cops who showed up to perform the bogus arrest will likely be forgiven for being too professionally ignorant to comprehend the finer points of “not making shit up to excuse your actions” when they’re obviously unjustified. But there’s always a chance this actually ends in something comparable to justice. Let’s hope — for the sake of DC and the country itself — that’s the case here.
As of this moment, the National Guard is indefinitely prevented from deploying within the Chicagoland area. The court order was issued pending the Supreme Court’s decision to rule on the matter. And because this administration is a walking, talking clown show, the information that SCOTUS is getting on the matter is hilariously stratified depending on who they’re talking to.
President Donald Trump‘s administration has told the U.S. Supreme Court he needs to deploy National Guard troops to the Chicago area in part because local police have failed to respond to what the Justice Department described as mob violence by people protesting his aggressive immigration enforcement.
Those law enforcement agencies have given the nine justices a starkly different account of protests they called limited in scale, detailing in court filings how they have responded on specific dates and explaining how a unified command they set up to coordinate efforts dealt effectively with the demonstrations.
In other words, the Trump administration is pleading the court to let it send armed troops into the third largest city in the country to protect the very people who are essentially telling the court, “Meh, we’re fine.”
That won’t stop Trump, obviously, because this was never really about safety in cities or protecting federal agents. This is purely about pushing to see just how much this administration can get away with and, to go tinfoil hat on you for a moment, to begin putting the chess pieces on the right parts of the board come election time. Major city after major city will see the attempted deployment of armed forces. Trump recently stated that he will send “more than the National Guard” if needed. I’ve seen Independence Day. I know how this works.
So, what protects us from whatever Trump’s version of “checkmate” is? Multiple things, to be sure. Popular uprising. Overcoming whatever obstacles he constructs in the midterm elections. Organizational efforts to undermine his lawless activity wherever possible.
Two Illinois National Guard members told CBS News they would refuse to obey federal orders to deploy in Chicago as part of President Trump’s controversial immigration enforcement mission — a rare act of open defiance from within the military ranks.
“It’s disheartening to be forced to go against your community members and your neighbors,” said Staff Sgt. Demi Palecek, a Latina guardswoman and state legislative candidate from Illinois’s 13th District. “It feels illegal. This is not what we signed up to do.”
Both Palecek and Capt. Dylan Blaha, who is running for Congress in the same district, described growing unease among Guard members after the White House federalized 500 troops – including members of the Illinois and Texas National Guard – to secure federal immigration facilities and personnel in the Chicago area.
“I signed up to defend the American people and protect the Constitution,” Blaha said. “When we have somebody in power who’s actively dismantling our rights — free speech, due process, freedom of the press — it’s really hard to be a soldier right now.”
Some of this isn’t new. In other cities, we’ve had National Guard members displeased with their use as political pawns in mission-less deployments to patrol peaceful cities. But I’m unaware thus far of any instances of them actually refusing orders. Such a refusal, should the order be ultimately deemed lawful, would be grounds for discharge, imprisonment, and so on. It’s a big freaking deal and would generate a ton of attention.
Which is precisely why it needs to happen.
Asked if she would refuse a direct order to deploy to Chicago, Palecek didn’t hesitate. “Absolutely. I would definitely say no,” she said. “I’m not going to go against my community members, my family and my culture. I believe this is the time to be on the right side of history.”
“Look at 1930s, 1940s Germany,” Blaha said. “There is a point where if you didn’t stand up to the Gestapo, are you just actively one of them now?”
It’s worse than that. Nazi Germany didn’t have social media, cell phone cameras, or the internet by which all of this chaos can be shared in real time. Whatever sins the German people committed by failing to stop Hitler’s party when they could, and they very much did commit those sins, it’s still true that the average German wasn’t nearly as informed as to what the Nazis were doing compared with the access to information that the American people have today. No soldier can claim ignorance. If they participate, they are knowingly complicit, full stop.
The scary part is how unfortunately rare this sort of bravery is in the military. In fact, it seems many in the military are fully embracing Trump’s fascistic tendencies.
Both Blaha and Palecek said they’ve faced retaliation for speaking publicly. Blaha disclosed that his security clearance was suspended by the Defense Department after posting a viral video urging soldiers to disobey unlawful orders. “They twisted my words,” he said. “I have about 30 days in order to provide them with a written response.”
Retribution, Palecek added, is “real.” She’s received death threats since denouncing the deployments and launching her political campaign. “It weighs on you mentally after a while,” she said.
Still, both say silence is not an option. “We were trained to stand up for what we believe in and stand up for the American people,” Blaha said.
And stand up for the Constitution, too.
Look, it must be very difficult to be a good person in the National Guard right now. You just never know when you’re going to be asked to do battle with your fellow Americans. But an oath is an oath and we should all expect, not just hope, our soldiers to behave like patriots.
Two Trump-appointed federal judges just decided that facts don’t matter when the President wants to send the military into American cities.
Donald Trump declared Portland a “war-ravaged” city requiring military intervention based on a few anti-ICE protests and imagery from five years ago on Fox News that he apparently thought was happening now. The actual threat? Police reports from the days before his deployment order show “approximately 8-15 people at any given time out front of ICE. Mostly sitting in lawn chairs and walking around.” One officer noted the protesters had “low energy” and “minimal activity.”
So Trump ordered military deployment against people in lawn chairs based on old Fox News footage. A Trump-appointed district court judge quickly issued an injunction, calling out the absolute insanity of military deployment based on complete fiction. She noted that Trump’s legal justification—that he was “unable with the regular forces to execute the laws of the United States”—was “simply untethered to the facts.”
But two judges on the Ninth Circuit Appeals Court just dissolved that injunction, effectively ruling that the President gets to define his own reality when deploying troops against American citizens. And a third judge, Susan Graber, is calling out her colleagues in scathing terms for abandoning core constitutional principles.
While the district court cited this highly deferential standard, Oregon, 2025 WL 2817646, at *9, it erred by failing to apply it. Instead, the district court substituted its own assessment of the facts for the President’s assessment of the facts. This is the opposite of the significantly deferential standard of review that applies to the President’s decision to invoke § 12406(3) and federalize members of the National Guard.
The majority goes through a longer list of basically every time the small group of protesters got too loud or annoying for ICE, without bothering to explore if any of those protests violated the law, or actually got in the way of the execution of the law. It also dinged the (again, Trump-appointed) district court judge for actually paying attention to what Donald Trump was lying about on social media in making her determination:
Second, the district court erred by placing too much weight on statements the President made on social media. Oregon, 2025 WL 2817646, at *11. The district court interpreted President Trump characterizing Portland as “War ravaged,” as the equivalent of the President “ignoring the facts on the ground.” Id. As such, the district court relied on these statements to disregard other facts that do “reflect[] a colorable assessment of the facts and law within a range of honest judgment.”
The majority, made up of two Trump-appointed Ninth Circuit judges: Ryan Nelson and Bridget Bade, insist that Trump’s lies should simply outweigh what anyone can plainly see with their own two eyes. It’s somewhat ridiculous.
And the third judge on the panel, Susan Graber, calls out the bullshit of her colleagues, in pretty strong language, while suggesting the rest of her colleagues on the Ninth Circuit should do an en banc review as soon as possible:
In the weeks preceding the President’s September 27 social media post proclaiming that Portland was “War ravaged” and authorizing Secretary Hegseth to deploy federalized Oregon National Guard members, demonstrations in Portland were non-disruptive and small. Notwithstanding the turbulent events that had occurred several months earlier, the record contains no evidence whatsoever that, on September 27, Immigration and Customs Enforcement (“ICE”) was unable either to protect its Portland facility or to execute the immigration laws it is charged with enforcing. But, in the statute invoked here, Congress has authorized the President to call up the National Guard only to repel a foreign invasion, quell a rebellion, or overcome an inability to execute the laws. Consequently, no legal or factual justification supported the order to federalize and deploy the Oregon National Guard.Given Portland protesters’ well-known penchant for wearing chicken suits, inflatable frog costumes, or nothing at all when expressing their disagreement with the methods employed by ICE, observers may be tempted to view the majority’s ruling, which accepts the government’s characterization of Portland as a war zone, as merely absurd. But 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’s exactly right. The ruling is an all-out attack on multiple things that have been considered settled US legal issues. The idea that the President gets to call out the National Guard to shut down some political protests is absolutely insane. The district court called it out, as does Judge Graber.
As she notes, it’s both obvious and important that there is no fucking “war zone” in Portland:
The district court’s factual findings, which the government does not challenge on appeal, and which are not clearly erroneous in any event, fully resolve this issue. In the two weeks leading up to the President’s September 27 social media post, there had not been a single incident of protesters’ disrupting the execution of the laws. Oregon, 2025 WL 2817646, at *10. I repeat: not a single incident for two weeks. Here are summaries from police reports for the five days preceding the President’s social media post.
September 22: Approx. 7-10 people. No calls.
September 23: Few people. No activity.
September 24: Approx. 10 people. No calls.
September 25: Approx. 20 people. No calls.
September 26: Approx. 15 people. Energy low, minimal activity. No incidents.
A police officer’s report from September 26 stated: “Throughout the day we observed approximately 8-15 people at any given time out front of ICE. Mostly sitting in lawn chairs and walking around.”
It is hard to understand how a tiny protest causing no disruptions could possibly satisfy the standard that the President is unable to execute the laws. The facts at issue in Newsom—significant, violent protests by hundreds of people in several locations the day before and the day of the President’s invocation of the statute—could not be further from the facts here—small gatherings in one location with “no activity” or “minimal activity,” low energy, and no calls for assistance for weeks.
While the majority called out random incidents of one or two protestors getting rowdy, Judge Graber says (1) those happened months ago and (2) none of them appeared to get in the way of ICE continuing to do its job. As she notes:
The legal basis for this argument is unclear.The trigger for federalizing the National Guard is an inability to execute the laws, not staffing difficulties that fall short of demonstrably resulting in an inability to execute the laws. The government has not explained how its purported staffing troubles were causing an inability to execute the laws on September 27. As explained above, the protests themselves—small, uneventful, low-energy—were not preventing execution of the laws at that time.The most that can be said is that, because FPS officers were stretched thin, if protests were to flare up in the future and if staffing woes were to lead to insufficient staffing, then an inability to execute the laws might arise at some hypothetical future time. But, as also explained above, subsection three of the statute requires a present-day inability to execute the laws; fear of a future inability is not enough. Nor could staffing difficulties alone support an inability to execute the laws; otherwise, the President could direct scores of FPS officers to a location with minimal security issues and then claim authority to call up the National Guard because those officers are needed elsewhere. In assessing whether the President had a colorable basis for concluding that the statutory requirements were met, we must consider the actual situation being addressed by the FPS officers.
She also dings her colleagues in the majority for being so desperate to help out Donald Trump that they made up an argument the DOJ never actually made:
The majority’s order spells out an argument that the government does not make, presumably because the government recognizes the lack of factual support. The argument in the majority’s order proceeds as follows. FPS has 776 officers, but only 497 officers are trained to protect federal buildings. Robert Cantu, the regional FPS director, asserted that, from June through September, “115 FPS officers have had to deploy to Portland.” The majority’s order first assumes that all 115 officers—nearly a quarter of the agency’s officers with relevant training— were stationed in Portland in late September. The majority’s order next reasons that such a diversion supports an inference that Portland is a significant source of staffing woes.
But that argument impermissibly adds facts to Director Cantu’s vague, carefully worded assertion. Crediting his assertion, we know that a total of 115 officers from elsewhere were deployed in Portland during the preceding four months. The record contains no information about how many officers were in Portland at any given time. For all we know, FPS sent a different 8 officers to Portland every week for 14 or 15 weeks, meaning that Portland’s drain on FPS’s staff from elsewhere on any particular day was 8 people, not 115. Indeed, the only description in the record of a “[s]urge” in officers was the deployment of 8 officers. The fact that there were 26 FPS officers on duty on September 6, as the majority’s order emphasizes, Order at 27 n.13, says nothing about whether any or all of those individuals were from somewhere other than Portland. The record does not reveal the number of local FPS officers
Even if we assume that FPS deployed all 115 officers in June, it strains credulity to assume that all 115 of them remained in Portland for four months. What were they doing during the month of August, for example, when there was only a single incident at the ICE facility during the entire month? The record does not tell us. Indeed, the record does not shine light on the most pertinent information: in the days leading up to September 27, how many FPS officers from elsewhere were in Portland? The only hint in the record is a reference to some officers from elsewhere leaving Portland and returning to their home stations.
She also mocks the idea that the National Guard deployment can be justified in response to “a rebellion”—an argument the majority decision didn’t even grapple with, saying they didn’t need to, given Trump can win with or without rebellion by just pointing (without evidence) to his supposed inability to execute the laws. But the lying about the rebellion kinda matters:
As an initial matter, the record contains no evidence that the sporadic violent events occurring over a handful of days during four months of otherwise peaceful protests were in any way organized. For example, there is no evidence of leadership, organizational structure, premeditation, or an overarching plan.
Even putting aside that deficiency, nothing in the record suggests that, on September 27, there was a rebellion or a danger of one. The same reasons given in Part I-A-1, above, apply here. In the two weeks leading up to September 27, there was not a single incident of “force and arms” against ICE’s personnel or facility. And going back more than two months, the record contains only “evidence of sporadic violence against federal officers and property damage to a federal building.”
Even considering all four months, the events as a whole did not rise to the level of an “unusual and extreme exigenc[y]” constituting a “rebellion.” Newsom, 141 F.4th at 1051. On almost every day during the four months preceding September 27, the record discloses ordinary political protests in Portland. Ordinary protests—quintessential First Amendment activity—obviously do not constitute a rebellion. See Illinois, 2025 WL 2937065, at *6 (“Nor does a protest become a rebellion merely because of sporadic and isolated incidents of unlawful activity or even violence committed by rogue participants in the protest. Such conduct exceeds the scope of the First Amendment, of course, and law enforcement has apprehended the perpetrators accordingly. But because rebellions at least use deliberate, organized violence to resist governmental authority, the problematic incidents in this record clearly fall within the considerable daylight between protected speech and rebellion.”)
And while the majority tried to suggest that small rebellions like the Whiskey Rebellion, Shay’s Rebellion, or Fries’s Rebellion mean it’s fine to call the protests a rebellion, Judge Graber calls bullshit:
Those rebellions shared several salient characteristics, including a large number of participants relative to the population and to available law enforcement, a wide geographic scope, evident organization and leadership, widespread use of arms, intense ferocity, and the creation of extreme difficulty restoring control by means of ordinary law enforcement.
What occurred in Portland differed in every dimension. As already noted, there is no evidence of organization or leadership, widespread use of arms, ferocity, or difficulty exerting control by ordinary means. In addition, the population of the Portland metropolitan area exceeds two and a half million, spread across nearly 6,700 square miles. U.S. Census Bureau, Annual Estimates of the Resident Population for Metropolitan Statistical Areas in the United States and Puerto Rico: April 1, 2020 to July 1, 2024; U.S. Census Bureau, State and Metropolitan Area Data Book: 2010, at 110. At their height, the protests in Portland have involved 200 people, or about 0.008% of the population. And they have taken place exclusively around a single city block, or approximately 0.00002% of the Portland metro area. The few people who did commit sporadic acts of violence have been arrested, processed, and charged by regular law enforcement forces.
Finally, she points out that the government hasn’t shown what injury it will incur if its invasion is not stayed while the courts consider further evidence, while there is pretty fucking clear evidence that the people of Portland will be harmed by an invasion of the US military.
Plaintiff City of Portland has a strong interest in preserving the peace. As the district court found, the deployment of troops in Portland is likely (if not certain) to aggravate the situation at the ICE building. Id. Finally, nearby businesses have economic interests that are likely to be harmed by the deployment of troops.
Judge Graber, who is not someone prone to hyperbole, closes by calling out how fucking anti-American all of this is:
The Founders recognized the inherent dangers of allowing the federal executive to wrest command of the State militia from the States. Congress authorized the President to deploy the National Guard only in true emergencies— to repel an invasion, to suppress a rebellion, or to overcome an inability to execute the laws. 10 U.S.C. § 12406. Congress did not authorize deployment in merely inconvenient circumstances, and Congress unquestionably did not authorize deployment for political purposes. Article III commands that we enforce those limits. The majority’s order abdicates our judicial responsibility, permitting the President to invoke emergency authority in a situation far divorced from an enumerated emergency.
And she rightly calls on “partisans” to imagine how they would feel if a future President rolled out the National Guard over other issues. She knows, we know, and they all know, that the MAGA crowd would totally freak the fuck out if a Democratic President sought to federalize the National Guard and invade American cities and towns in any other circumstance.
Today’s President seeks to bring troops into one set of States to enforce one set of laws; a future President may seek to bring troops into a different set of States to enforce a different set of laws. Partisans who cheer this President’s use of troops to protect personnel who are enforcing federal immigration laws would do well to consider whether they would be equally pleased if a future President uses troops to protect personnel who are enforcing laws that they vehemently dislike. Cf. Greer v. Spock, 424 U.S. 828, 839 (1976) (noting “the American constitutional tradition of a politically neutral military establishment under civilian control”).
We don’t even have to speculate. For years, the MAGA world has spread a nonsense, debunked conspiracy theory about how a standard military training exercise was actually a plan to invade Texas and take away guns. Judge Graber is just pointing out that now that this is actually happening, it’s pretty fucking crazy that MAGA supports it.
Bunch of hypocrites.
Judge Graber calls on her colleagues to gather to overturn the majority’s ruling and issues a stark plea to those dismayed by this ridiculous result:
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.
And it appears that at least one of her colleagues has already accepted the challenge. An unnamed judge on the Ninth Circuit has already requested a vote for an en banc rehearing before Portland or Oregon even asked for one. The court has already asked the parties to file briefs on this by tomorrow at midnight. (As a reminder, because the Ninth Circuit is ridiculously large and no one has the political will to break it up into multiple circuits, unlike other circuits where “en banc” means all the judges, in the Ninth it’s a random set of 10 judges, so it can be a bit of a crap shoot).
Either way, this is yet another fast-moving case in which the Trump administration and its DOJ are demanding crazy things, and (mostly Trump-appointed) judges are pretending it’s normal. Hopefully, the court agrees to do a quick en banc hearing and shuts this nonsense down.
Stitt is standing alone, facing a Republican party that only represents itself — a collection of cowards who are hoping to leverage their subservience to Trump with their constant catering to the most bigoted members of their voting bloc into lengthy careers in the field that used to be known as “public service.”
Mr. Stitt on Thursday said, “We believe in the federalist system — that’s states’ rights,” adding, “Oklahomans would lose their mind if Pritzker in Illinois sent troops down to Oklahoma during the Biden administration.”
Mr. Stitt stressed that he supported President Trump’s efforts to protect Immigration and Customs Enforcement agents and ensure “law and order” in cities like Chicago and Portland, Ore. But he worried about the precedent that was being set by the guard deployment and how it could be used by a president from another party.
As has been noted here before (repeatedly), the Trump administration is all for federalism when it applies to states rejecting federal laws Trump doesn’t agree with. When it comes to “blue” states, however, Trump doesn’t believe they’re allowed to fight for their own rights, even when the law says otherwise.
The Trump administration is hoping to dodge injunctions blocking his martial law plans for “Democrat” cities like Portland and Chicago by mobilizing National Guard units from other states — often with the explicit permission of the Republicans governing those states. We knew it was a lie the moment the words fell out of her mouth, but Trump’s actions in recent days make it clear that only “liberal” cities will be targeted by martial law-esque deployments of military troops. First, it was Los Angeles. Now, it’s both Portland, Oregon and Chicago, Illinois.
The courts aren’t exactly helping here. While federal courts have found reason to block Trump’s takeover of local National Guard units, the Ninth Circuit Appeals Court (which covers both California and Oregon) seems inclined to rule in favor of the president and the apparently unlimited extent of executive power. If the case in Chicago generates a circuit split, we’re no better off. In the past, this sort of thing might have provoked a lengthy discussion by the Supreme Court. These days — under Trump 2.0 — the Supreme Court is more likely to give Trump what he wants without bothering to explain to the millions of Americans affected why it chose to do so.
Governor Stitt’s dissent could have been a bit more powerful, too. While he raises good points about how apoplectic the GOP would have been if Biden had pulled this shit, he also thinks it’s not generally a bad idea to engage in martial law, so long as you force the local troops to go to war with the fellow state residents.
Instead, Mr. Stitt said, Mr. Trump should have moved to federalize the troops in Illinois first.
Stitt’s attempt to hedge this mild (but still surprising!) criticism of Trump’s National Guard deployments probably won’t save him from the wrath of a wholly subservient GOP. He should expect to be pilloried, then primaried, for even suggesting there might be a better way to engage in martial law. Still, it says something about how far Trump has strayed over the line of acceptable executive behavior that even people who know they’ll be punished for speaking out are doing so and, better yet, making it clear the GOP would have gone nuclear if any Democratic leader attempted to do things Trump is doing on a daily basis.
Hello from the free state of Illinois! We just talked about Donald Trump’s incurrsion into Chicago and the surrounding area, in which he first sent in a bunch of masked ICE agents to terrorize citizens and immigrants alike, at one point raiding an apartment building with agents repelling from blackhawk helicopters like the reincarnated form of Osama Bin Laden was hiding inside of it. When a couple of hundred protesters showed up outside of a major ICE facility in nearby Broadview, the feds first fired gas and pepper bullets at them for the crime of protesting, and eventually shot a protester seven times for “ramming” an ICE vehicle as part of a “convoy.” Notably, the convoy appears to have consisted of a couple of vehicles and lawyers for the protest claim bodycam footage, not yet released, shows that it was the ICE vehicle that did the ramming, and that an agent jumped out at the protestor shouting “Do something, bitch!” before shooting her seven times.
Cool.
Well, the threat to ICE from the people they were solely shooting at was enough for Trump to want National Guard members from both Illinois and, bizarrely, Texas to deploy to the Chicago area to “protect” ICE agents and for Mayor Brandon Johnson and Governor J.B. Pritzker to be arrested. Full on authoritarianism. Those local officials refused to back down and in fact sued to get the military the hell out of Chicago’s streets. In the meantime, Pete Hegseth, presumably while having a splitting headache and a bad bout of dehydration, had already sent the troops in.
Now, two separate judges at the District Court have issued two separate orders upon the federal government and both are firmly in the loser category for Trump.
Let’s start with the TRO on the National Guard being deployed to the Chicago area.
A judge has temporarily blocked the Trump administration from federalizing or deploying the national guard in Illinois after Donald Trump ordered hundreds of troops to Chicago to help with immigration enforcement and to battle what the White House says are high crime rates in the city.
US district judge April Perry issued her decision from the bench after more than two hours of arguments from lawyers for the federal government and the state of Illinois, which sued the Trump administration over the deployment. The order took effect on Thursday and will remain in place for two weeks.
According to reporters present in the courtroom, Perry said she had “seen no credible evidence that there is a danger of a rebellion in the state of Illinois”. On Thursday evening, around the time of Perry’s ruling, about half a dozen guard soldiers were milling around inside the gate at the Ice center in Broadview. A group of about 10 protesters were outside.
Now, we all know how little regard this administration has for court orders. I fully expect them to try to play semantic and technical games to keep the troops where they are. After all, who else will shuffle their feet around with nothing to do if not our soldiers? But that will kick off yet another constitutional crisis. I expect it and, frankly, I want it to happen. I keep saying this, but this is going to come to a head sooner or later and we might as well get things started. The sooner Trump exceeds his authority and fully thumbs his nose at the rule of law, the sooner someone is going to have to do something about it. And if that means Republicans finally waking up and getting him to back down, great. If it means impeachment, all the better. But since neither of those things is likely to happen, instead I expect civil activity to spring up all across the country in major cities. Let’s go.
Lawyers for the government tried to pretend reality wasn’t reality with Judge Perry and she simply wasn’t buying it.
Eric Hamilton, a justice department lawyer, said the Chicago area was rife with “tragic lawlessness”.
“Chicago is seeing a brazen new form of hostility from rioters targeting federal law enforcement,” Hamilton said. “They’re not protesters. There is enough that there is a danger of a rebellion here, which there is.”
In handing down her order, Perry assailed the Department of Homeland Security for providing a version of events on the ground that was “simply unreliable”.
Folks, I can’t stress this enough: the federal government is completely full of shit. I grew up two towns over from Broadview, the location of “the rebellion”. I live 20 minutes away from the ICE facility in question. I nearly drove past it on my way to work this morning. If there is a rebellion in the works, it is remarkably silent and invisible. When this judge says “hey, you’re full of shit!” as politely as possible to a government lawyer, I can promise you that she’s right.
The Trump administration is of course going to appeal this, but I would bet they’ll lose there as well. And then this will go before SCOTUS and god knows what those lunatics will decide. But make no mistake: the government’s lawyers are lying. Blatantly lying. I live here. I know it to be so. And this will further galvanize legal action from other states that can see where this all ends if not challenged.
Two dozen other states with a Democratic attorney general or governor have signed an appeals court filing in support of the legal challenge by California – and also one in the Portland, Oregon, where a similar troop deployment is also being challenged.
Collective action is desperately needed, so more of this, please.
But the courts weren’t done. A separate judge in the court issued an injunction both to keep ICE and other federal agents from using riot control tactics on small, peaceful protests, and to cut the shit with their jackboot thugs routine.
In a separate ruling on Thursday, the US district judge Sara Ellis issued a preliminary injunction restricting agents’ use of force, including pepper balls, rubber bullets and physical force such as pulling, shoving or tackling against protesters and journalists who don’t pose a serious threat to law enforcement.
Ellis’s order covers all of northern Illinois and also requires federal agents to wear “visible identification” such as badges, the subject of heated debate as viral footage has surfaced of masked, plainclothes officers carrying out immigration enforcements in several US cities.
You boys and girls want to hunt human beings and violate the rights of citizens and the due process rights of all manner of people? Show your faces. Show your names and your badges. Be accountable. Don’t hide behind balaclavas or masks and unmarked cars indistinguishable from impersonators. You’ll do this out in the open or you won’t do it at all. That’s as American as baseball and apple pie.
This isn’t the end of this. It might not even be the beginning of the end. I fully expect the federal government to violate these injunctions essentially immediately. I’m also taking note of a complete lack of outrage from elected Republicans over Trump’s violation of law as well as his call to jail elected officials for the crime of not following his orders. Cowards, all of you.
But again, this is going to come to an inflection point sometime. It might as well be now. After all, I love the smell of court injunctions in the morning.
