Demonstrators protest outside the immigration processing and detention facility this month in Broadview, Ill. President Donald Trump wants to deploy Texas National Guard members to the Chicago area but has been blocked by federal courts. (Photo by Scott Olson/Getty Images)
As President Donald Trump prepares to send National Guard troops — from either Oregon, California or possibly Texas — into Portland, Oregon, entrepreneur Sarah Shaoul watches with deep concern.
A three-decade resident of the Portland area, Shaoul leads a coalition of roughly 100 local small businesses, including many dependent on foot traffic. Armed troops could spook customers and, she fears, trigger a crisis where none exists.
“I don’t want this to be a political conversation but, I mean, the fact you bring people from other states who maybe have different politics — I think it shows an administration that’s trying to pit people against other people,” Shaoul said.
Trump’s campaign to send the National Guard into Democratic-leaning cities he describes as crime-ridden has so far reached Los Angeles; Washington, D.C.; Memphis, Tennessee; Chicago and Portland. He has federalized — taken command of — hundreds of active-duty guard members to staff the deployments.
But in the two most recent attempted deployments to Portland and the Chicago area, the Trump administration has turned to out-of-state National Guard troops, the part-time soldiers who often respond to natural disasters.
National guards are usually under the control of state governors, with state funds paying for their work. But sometimes the troops can be called into federal service at federal expense and placed under the president’s control.
In addition to federalizing some members of the Oregon and Illinois National Guard within those states, the president sent 200 Texas National Guard troops to the Chicago area and plans to send California National Guard members to Portland. A Pentagon memo has also raised the possibility of sending some Texas troops to Portland.
Presidents who have federalized National Guard forces in the past, even against a governor’s will, have done so in response to a crisis in the troops’ home state. That happened to enforce school desegregation in Arkansas in 1956 and Alabama in 1963.
But the decision to send one state’s National Guard troops into a different without the receiving governor’s consent is both extraordinary and unprecedented, experts on national security law told Stateline.
It’s really like, you know, a little bit like invading another country.
– Claire Finkelstein, professor of law and philosophy at the University of Pennsylvania
The cross-border deployments evoke concerns stretching back to the country’s infancy, when the Federalist Papers in 1787-1788 grappled with the possibility that states could take military action against one another. While the recent cross-state deployments have all included troops under Trump’s command, Texas Republican Gov. Greg Abbott has been an enthusiastic supporter of Trump ordering his state’s National Guard to Chicago.
The troop movements raise questions of state sovereignty and how far the president can go in using the militia of one state to exercise power in another. At stake is Trump’s ability to effectively repurpose military forces for domestic use in line with an August executive order that called for the creation of a National Guard “quick reaction force” that could rapidly deploy nationwide.
“It’s really like, you know, a little bit like invading another country,” said Claire Finkelstein, a professor of law and philosophy at the University of Pennsylvania who studies military ethics and national security law.
The Trump administration has asked the U.S. Supreme Court to allow it to proceed with the Chicago-area deployment, which is currently blocked in federal court. On Monday, the 9th U.S. Circuit Court of Appeals allowed the deployment in Portland to move forward, overruling a district court judge, but additional appeals are expected.
The deployments come as Trump has repeatedly threatened to invoke the Insurrection Act to expand his ability to use the military for law enforcement. Presidents are generally prohibited from deploying the military domestically, but the Insurrection Act, which dates back to 1792, could be used to bypass restrictions and potentially allow National Guard members to make immigration-related arrests.
For now, Trump has federalized National Guard members under a federal law known as Title 10, which allows the president to take command of National Guard members in response to invasion, rebellions against the United States and whenever the president is unable to execute federal laws with “regular forces.”
He has characterized illegal immigration as an invasion and sought to station National Guard members outside of U.S. Immigration and Customs Enforcement, or ICE, facilities and other federal property.
While Chicago and Portland fight Trump’s moves in court, other cities are bracing for the arrival of troops in anticipation that the deployments will continue to expand. Washington state went so far as to enact a new law earlier this year intended to prevent out-of-state National Guard members from deploying in Washington. The new state law doesn’t pertain to federalized troops, however, only to those that might be sent by another governor.
“I’m incredibly concerned but not necessarily surprised by the president’s method of operation, that there seems to be a theme of fear, intimidation, bullying without a clear plan,” Seattle Mayor Bruce Harrell said in an interview with Stateline.
Harrell, who is running for reelection to the nonpartisan office in November, said Seattle officials are monitoring what’s happening in other cities. Any deployment of guard members — whether they were from Washington or elsewhere — would be concerning, he said.
“At the end of the day, they would be following orders with some level of military precision, so my concern isn’t so much out-of-state or in-state. I just oppose any kind of deployment.”
Courtroom fights
Whether the out-of-state status of National Guard members matters legally is up for debate. Experts in national security law are split over whether sending federalized troops across state lines poses constitutional and legal problems, even as they broadly agree the move is provocative.
Joseph Nunn, a counsel in the left-leaning Brennan Center’s Liberty and National Security Program, doubts the cross-state deployment of federalized troops is itself a legal issue.
Still, he criticized the decision to send in out-of-state National Guard and, speaking about Chicago, called the underlying deployment unlawful and unjustified. In ordering troops to Illinois, Nunn said, Trump was abusing his presidential power, regardless of the servicemembers’ home state.
“It is unnecessarily inflammatory,” Nunn said of that choice. “It is, I think, insulting to say we’re going to send the National Guard from one state into another.”
Democrats, especially in cities and states targeted by Trump, condemn the deployments as an abuse of presidential power, regardless of where the troops are from. Republicans have largely supported or stayed silent about Trump’s moves, though Oklahoma Gov. Kevin Stitt, who chairs the National Governors Association, has criticized the sending of Texas troops to Illinois.
Abbott wrote on social media in early October that he had “fully authorized” Trump to call up 400 Texas National Guard members. Abbott’s office didn’t respond to Stateline’s questions.
“You can either fully enforce protection for federal employees or get out of the way and let Texas Guard do it,” Abbott wrote on X.
In the Chicago area and in Portland, the Trump administration wants the National Guard outside ICE facilities where small protests have taken place in recent weeks. Dozens of people have been arrested in Portland since June, but there’s been no sign of widespread violence. A Stateline analysis of U.S. Census Bureau and federal crime data found that Trump’s National Guard deployments have not, with a single exception, targeted the nation’s most violent cities.
For weeks federal courts have kept National Guard troops off the streets of Portland and the Chicago area as legal challenges play out, but that could be changing. The Trump administration on Friday asked the U.S. Supreme Court to allow it to deploy National Guard troops in the Chicago area. If the court sides with the administration, the decision could clear the way for additional deployments elsewhere.
In the Friday filing to the Supreme Court, U.S. Solicitor General D. John Sauer wrote: “This case presents what has become a disturbing and recurring pattern: Federal officers are attempting to enforce federal immigration law in an urban area containing significant numbers of illegal aliens. The federal agents’ efforts are met with prolonged, coordinated, violent resistance that threatens their lives and safety and systematically interferes with their ability to enforce federal law.”
The U.S. Department of Defense didn’t directly answer questions from Stateline about whether further cross-state deployments are planned, saying only that it doesn’t speculate on future operations.
U.S. District Court Judge Karin Immergut wrote in an order blocking deployment of the National Guard in Portland that a handful of documented episodes of protesters clashing with federal law enforcement during September were “inexcusable,” but added that “they are nowhere near the type of incidents that cannot be handled by regular law enforcement forces.”
But on Monday, a divided three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that Trump had “lawfully exercised his statutory authority” to deploy Oregon National Guard servicemembers to Portland. Lawyers for Oregon and Portland are seeking a review by the full appeals court, a move that would put the case in front of 11 appellate judges.
Shaoul, the Portland business leader, said the presence of troops would itself risk creating “drama” at the expense of taxpayers.
“Tell me how that’s helping anybody to go in and intimidate a bunch of people who are dressed up in friggin’ costumes, playing music,” Shaoul said. “I mean, if nothing else illustrates what a joke this is, that should tell you right there.”
10th Amendment concerns
Top Republicans have long telegraphed their desire to use the National Guard to aid immigration enforcement.
In December, before Trump took office, 26 GOP governors — at the time, every Republican governor except Vermont’s Phil Scott — signed a statement promising to provide their national guards to help.
Since Trump’s inauguration, at least 11 Republican governors have ordered National Guard members to help ICE, typically by providing logistical support. At least four states — Florida, Louisiana, Texas and West Virginia — have entered into federal agreements that allow ICE to delegate some immigration enforcement duties, potentially including arrests, to National Guard members.
Trump’s decision to federalize National Guard members goes further, placing troops under the president’s command. The cross-state deployments represent the next step in testing his authority to command guard members.
Finkelstein, the national security law professor, said sending one state’s National Guard into another state raises serious legal issues under the 10th Amendment. The amendment reserves for the states or the people powers not specifically granted to the federal government — the idea at the core of federalism.
A president and governor may reasonably disagree about whether federalization is necessary to help their state, Finkelstein said, but “even that fig leaf” isn’t available when troops are sent to another state. California gets nothing out of the deployment of its National Guard to Oregon, she said. And unless it’s California’s governor — rather than the president — making the choice to deploy guard members elsewhere, it’s a “very real problem” that undermines state autonomy, she said.
Washington state Rep. Jim Walsh, who chairs the Washington State Republican Party, has been monitoring the attempted deployment in Portland, as well as the possibility of a deployment to Seattle. He said Trump has broad discretion under federal law to federalize National Guard members.
Still, Walsh said federalizing the National Guard gives him pause and is something that a hypothetical president — “leave this one out of the equation” — might overuse. But he argued state and local leadership in cities where the National Guard has been deployed have brought the situation on themselves by allowing a breakdown in law and order.
Asked about cross-state deployments, Walsh largely dismissed any legal concerns.
“I guess they would know the area better,” Walsh said of troops deployed in their home state. “But this is kind of a specious argument. … The president, whoever he or she is, can federalize National Guard units.”
Walsh said he doesn’t see a situation at the moment that would necessitate a Guard deployment within Washington state.
But Seattle isn’t taking any chances.
Harrell, the Seattle mayor, signed two executive orders in October, one that pushes back on the practice of federal agents making immigration arrests while wearing masks, and another that seeks to maintain control over local law enforcement resources if the National Guard is deployed in the city.
“I’m critically concerned about what can occur as a reaction,” Harrell said. “That’s exactly what Trump’s goal is, to raise tension and create chaos and to use blue cities as scapegoats.”
Stateline reporter Jonathan Shorman can be reached at jshorman@stateline.org.
