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 his administration argued that the Democratic-led states were obstructing federal immigration enforcement.

Relying on a great deal of constitutional rulings and case law, government lawyers sought to justify the deployment of the National Guard in Portland and Chicago. Some legal experts say the law is on his side, while others worry that Trump threatens state sovereignty.

Democratic leaders have responded with anger and indignation to Trump’s attempts to send federal troops into their jurisdictions. Chicago Mayor Brandon Johnson has established “ICE-free zones” throughout Chicago to prevent federal agents from using any city-owned property in their ongoing operations. Conservative critics have compared the measure and similar opposition to the Trump administration from Democratic leaders to attempts to repeal federal law, going back to the 19th century.

“Illinois’ Abraham Lincoln had some ideas about how to handle this John C. Calhoun-like ‘repeal,’” conservative lawyer and commentator Josh Hammer wrote in X.

Pritzker is suing Trump to prevent the National Guard from operating in Illinois

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

“This is a principle that goes back to the beginning of the republic,” Blackman told Fox News Digital, pointing to the landmark case McCulloch v. Maryland, which found that Maryland could not tax a national bank created by congress.

The Supreme Court said in that case that allowing a state to impose such a burden on a federal institution would violate the Constitution’s Supremacy Clause, which states that federal law trumps state law.

The need for the National Guard

During a set of oral arguments this week before the U.S. Court of Appeals for the Ninth Circuit, a Trump administration lawyer said the unrest in Portland, caused by Immigration and Customs Enforcement activity, justified the deployment of about 200 National Guard troops.

“For months, the ICE facility in Portland and the federal law enforcement officers who work there have faced a constant stream of violence, threats of violence, and harassment from violent agitators bent on obstructing the enforcement of federal immigration laws,” said Eric MacArthur, who is defending the Department of Justice.

MacArthur said the Insurrection Act, which Trump is using to federalize the National Guard, and over which governors share authority, could be invoked in those situations.

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

“The law allows the president to make a judgment about need. It’s not clear to me that a court can second guess that,” Blackman said.

States are ‘frustrated’ with immigration enforcement

In court papers, the Trump administration also cited an 1890 case, Nagle v. Cunningham, which held that the president has authority under the Constitution’s Cares Clause to “take care of” the implementation of federal laws, including by doing what is necessary to protect those who enforce immigration laws.

In Nigel, a U.S. marshal shot and killed a person who attacked a Supreme Court justice, and the Supreme Court found that California could not prosecute the marshal for murder because the marshal was protecting a federal officer.

A federal judge blocks Trump’s National Guard deployment to Portland amid constitutional challenge

Supreme Court interface (Drew Angerer/Getty Images)

Blackman said that states have for years been “frustrated” with enforcing federal immigration laws and that these lawsuits filed by blue states trying to challenge the presence of the National Guard were an example of that.

He said state resistance “did not rise to the level of nullification,” as it did when states in the South tried to block the integration of segregated schools, but was “in the playing field.” If states defy court orders, it could escalate matters, Blackman said.

The lawsuits, which could go to the Supreme Court, especially if circuit courts rule against Trump in the coming days, could help sharpen the line between state and federal authority regarding law enforcement.

The police fall within the “responsibilities of the state”

Like Oregon and Illinois, the 10th Amendment is also used in these cases, implying that the Trump administration typically cannot take over law enforcement responsibilities in the state, said Matt Cavedon, director of the CATO Institute.

Cavedon also said it was unusual, in his view, for a Republican government to embrace a more expansive 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 a chaotic anti-ICE protest in Broadview, Illinois, last week. (Anna Moneymaker/Getty Images and John Stegenga via Storyful)

“It’s not usually conservatives who argue that there are broad, uncountable federal powers of the president, certainly in the domestic context,” Cavedon told Fox News Digital.

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Cavedon said that the events in the two states are “fundamental issues related to public security and public safety, and are at the core of the state’s responsibilities.” Oregon and Illinois state leaders have made similar claims that there was nothing unusual happening in terms of crime to justify the National Guard’s intervention.

“I believe the Tenth Amendment answers the question: Which powers not granted to the federal government are reserved to the states, respectively,” Cavedon added.