Beginning in late September, the president deployed troops, first from the Oregon National Guard, and later ordering 400 troops from the California and Texas National Guards to join them, in Portland. California, Oregon, and the City of Portland sued to stop the administration. Last Friday, a federal district judge in Oregon, Karin Immergut, permanently blocked the administration from sending National Guard troops to Portland. Trump appointed Immergut to the bench during his first term in office. 

Trump argued that he needed to deploy the troops to deal with violent protests outside of an Immigration and Customs Enforcement (“ICE”) facility in Portland. But as Judge Immergut wrote, “after a three-day trial that included the testimony of federal, state, and local law enforcement officials and hundreds of exhibits describing protest activity outside the Portland ICE building, the evidence demonstrates that these deployments, which were objected to by Oregon’s governor and not requested by the federal officials in charge of protection of the ICE building, exceeded the President’s authority.” The judge explained that while there had been violent protests in June, they were competently handled by local law enforcement. Since then, protests were “predominately peaceful.” The Judge concluded that “even giving great deference to the President’s determination, the President did not have a lawful basis to federalize the National Guard under 10 U.S.C. § 12406.” That section permits a president to federalize troops in cases of invasion, rebellion, or “inability of the regular forces to execute the laws of the United States.” That last bucket is what the Trump administration is alleging here, arguing that the ICE office in Portland isn’t properly protected.

With a related case from Chicago challenging the president’s decision to send troops to that city already before the Supreme Court, the Portland case is likely on a fast track there as well. At stake is the ability of a president to override the wishes of governors and mayors and federalize and deploy troops on the streets of an American city, including troops that come from another state, despite the absence of objective evidence to justify the move. There is no way of predicting how the case will turn out when it arrives at the Supreme Court, but there is a cautionary note: if the Court allows a president to do this, federalism will suffer a mighty blow.

Federalism refers to a system of government in which two or more levels of government share authority over the same geographic territory. That’s how our government is structured, with an overarching national government that takes responsibility for broad governance and issues that impact national interests, while states, counties, and cities handle more localized concerns. 

The Tenth Amendment to the Constitution establishes the principle of federalism, reserving all powers that aren’t delegated to the federal government, or kept from the states, to the states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” That’s how conservatives attacked abortion rights, for instance, by saying the decision about their legality was one reserved to the states. States’ rights have long been a rallying cry for conservatives, who view placing too much power in centralized federal government as dangerous for people who want to be free from government intrusion.

The phrase “police powers” refers to the ability of a government to enact laws for the public good. In 1954, in Berman v. Parker, the Supreme Court described police powers as involving “[p]ublic safety, public health, morality, peace and quiet, law and order.” Police powers are reserved to the states by the Constitution. Because a general police power isn’t delegated to the federal government, it can act in this area only where a specific power or responsibility is enumerated. Judge Immergut explained how that applied here, writing that an unlawful federalization of National Guard troops by a president violates the Tenth Amendment, running afoul of the reservation of powers to the states that are “not expressly delegated to the federal government in the Constitution.”

The Tenth Amendment violation in Oregon happened in at least two ways, according to Judge Immergut’s decision. First, the Trump administration federalized and deployed Oregon National Guard troops, which “commandeered these state officers to enforce a federal law enforcement program at the Portland ICE facility, in violation of the Tenth Amendment.” And perhaps more significantly, Trump’s actions in deploying federalized California and Texas National Guard troops “involve[d] the intrusion of California and Texas National Guardsmen in their capacity as militiamen of those States, in violation of Oregon’s ‘sovereignty under the Constitution,’ and Oregon’s ‘equal sovereignty among the States.’” 

The Tenth Amendment rationale is only one part of the basis for Judge Immergut’s decision, but this violation speaks loudly in this context, during an administration with a common thread of using weak claims of national emergency to justify unprecedented exercise of power by the executive branch. The Tenth Amendment is the core of our system of federalism, and any violation of it should be deeply disturbing to those who believe, as conservatives have for decades, that federalism is the key to our constitutional Republic. Judge Immergut, a Republican appointee, has ruled in a way that defends federalism from an attack by the executive branch. The absence of vocal support for that view from those who have historically advocated for it would be astonishing if astonishment hadn’t become a quaint reaction to this administration’s abuses.

The Supreme Court’s conservative Justices came to the bench steeped in the tradition of federalism. But in the upside-down world we now inhabit, federalism and other once unbreakable principles like textualism are frequently abandoned in the service of the ever-expanding unitary executive theory, which seeks to make the presidency more powerful at every opportunity. Permitting a president to deploy National Guard troops in the way this administration has, without a legal peg to hang that power on, would forever alter the balance between the states and the federal government.

So far during Trump’s tenure, we’ve seen the presidency in conflict with key democratic institutions at the federal level. The executive branch has been positioned to erode Congress’s power of the purse and to contest the courts’ power of judicial review of presidential decisions. In the case before Judge Immergut, something new and dangerous is happening. It’s the presidency versus the power of a state. 

Our history and tradition suggest that the executive branch does not and should not have the ability to trample on the rights of a state in this manner absent a demonstrable emergency and in the face of opposition from state and local leaders. The district court’s decision was a vindication for the state and its rights and by extension, all of ours. Now the case will likely move into higher courts as the appeal gets underway. The question is whether those courts will reverse Judge Immergut’s decision and expand the power of the presidency at the expense of the states, potentially altering the constitutional balance of power forever.