Oregon attorney general sues Trump administration over National Guard deployment

President Trump has ordered 200 Oregon National Guard members into Portland, citing protests outside immigration facilities. Oregon Attorney General Dan Rayfield has filed both a lawsuit and a temporary restraining order to block the deployment. The state of Oregon and the city of Portland will appear in federal court at 10 a.m. on Friday for a hearing on their motion for a temporary restraining order. Rayfield joins us with details of the legal challenge.

Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. We continue our coverage of President Trump’s order to send 200 federal troops into Portland right now. Oregon Attorney General Dan Rayfield is fighting to block that order in federal court. The state of Oregon and the city of Portland will appear in court Friday morning for a hearing on their motion for a temporary restraining order. Dan Rayfield joins us now with the details of the state’s legal challenge. It’s good to have you back on the show.

Dan Rayfield: Yeah, thanks for inviting us.

Miller: Can you walk us through the basics of your legal arguments right now?

Rayfield: Absolutely. I think of these things as just common sense. As we walk through our community, as we’ve lived life in Oregon, as we’ve gone to school, the one thing that is not normal, that is unexpected in a country like the United States, is the U.S. military on our streets. That’s something you’d expect in a third world country or in a dictatorship. And the reason for that is we have laws in place to protect that from happening.

The president can only call up the National Guard in incredibly extreme circumstances, and they’re kind of common sense. The stuff is we could make this up if we were sitting in the living room. So if you think about it, if there was an invasion into the state, that makes a ton of sense. You have a foreign invasion. If there was a rebellion, okay, that makes some sense. And the last one is whether the president can’t effectuate the laws of the United States. And anyone living in Portland right now, anybody who’s even gone to the ICE facility, knows that none of those conditions are present here in Oregon.

And that’s really the crux of this case. There’s a couple of other nuanced arguments. But effectively what we’re saying is these conditions don’t exist. And you don’t have the basis to call up the National Guard here in Oregon.

Miller: During the civil rights movement, Republican and Democratic presidents federalized the National Guard over the objections of racist Southern Democratic governors to enforce desegregation. How were those situations different?

Rayfield: You look at the facts. And if you go look at what we filed yesterday, and this is one of my big things. We knew that the conditions present to be able to file this didn’t exist. We said we wanted to be in court right away, within less than 12 hours, and we wanted a temporary restraining order to pause these things, to be heard by a judge, as quickly as possible. And what you want is to get these facts out and why these facts are different than prior situations. And again, anyone living in Portland knows that to be true. And so that’s where you really start looking at what makes these types of situations unlawful, by the president.

With these types of things, you do want to give deference to any president under these types of circumstances. However, the conditions and the facts are so extreme here in Oregon that they present a nice contrast point for the court to really look at and examine.

Miller: The ruling in California against the deployment of the National Guard there does not have a direct bearing on Oregon. But do you think the judge here in Portland will be taking that district court ruling into account?

Rayfield: All judges take all information into account that they legally can to make the best decision possible under the circumstances. Some of our facts are different from what occurred in California. And again, I think what we have to be doing right now, as a society, is we have to be pushing back against this normalization of the United States military on the streets of our cities. This is a growing problem. Think about how we both thought our world truly existed 10 years ago, and now look at today. We are the frogs in boiling water. You have the normalization in California. You have it in D.C. You have it in Memphis. They’re talking about Illinois.

Just today, there was a big gathering by all of the defense generals and the report out of what Trump told all of his top military professionals, his career generals, was that they want to use the military ‒ and I won’t get it exactly right ‒ but that they can use some of these cities for their military training grounds.

This is unacceptable in America. This is not American in the way that this is going down. That’s why this line has to be drawn hard and fast into the sand so that we can defend what we really know America to be.

Miller: Apropos of that meeting with the generals, Dunja Marcum on Facebook wrote this to us. ‘He said in his speech to the generals today, Trump said, ‘we are under invasion from within.’ She wrote, ‘he was not talking about immigrants, he was talking about American citizens. This deployment is about the government turning against its own citizens.’

Dan Rayfield, if the administration had brought in 200 more ICE agents or Federal Protective Service officers or federal marshals or Secret Service, ‒ there’s a lot of different acronyms, a lot of different agencies that are various versions of law enforcement as opposed to the military ‒ would there have been any legal challenge?

Rayfield: And that’s exactly what happened during the first Trump administration.

Miller: Right, hundreds more. That was something like more than 700 additional federal law enforcement officers?

Rayfield: Indeed. They have control over those entities. Now obviously they can come in there and they have the ability to protect federal property. What we really should focus on here is, if you really care about public safety, you have a conversation with people. That’s what real leadership is. You pick up the phone and you say, ‘hey, I think there may be a problem.’ First, you identify if the facts are real, and say ‘hey, I’ve made a lot of assumptions off of social media. On the ground, are those things real?’ Then we have a conversation and talk to that. Then if they are real, which they are not, but if they were, what do you need? And how can I be a partner with you to fix those issues?’

That’s not what this president wants to do. In fact, I would have everybody really look at all the things that are going on in society right now that are concerning. You have a federal administration and congress attacking the independent judiciary, the hallmark of a democracy. Freedom of speech is being attacked and being threatened in the media last week. You have politicians right now openly talking about rigging our elections. You have a president who leads through fear, who has now told his entire military that I want to use our cities as training grounds. And now you have this normalization of our military.

All of these things are not something I would have ever expected to happen in America, but they are. And that’s why I think we have a responsibility to stand up in court and say, ‘hey, we need to have this conversation. These are violations of our Constitution.’ And that’s where we’re at right now. And I just like to put that in context. I don’t think we think about that.

Miller: About two dozen people have been arrested by federal law enforcement since June. Most of those were actually in June. Things have calmed down significantly since then. The federal charges have included aggravated assault of a federal officer, destruction of government property, and some misdemeanors as well. Do you expect the kinds of charges that could come in the coming weeks to change?

Rayfield: That’s something I wouldn’t have a lot of information on that, is that kind of, you know, trickles through. I think the reality is you have the Portland police, Multnomah County Sheriff’s Office, Oregon State Police, district attorney, you have an effective group of agencies that are keeping communities safe and holding people accountable. And here’s the thing. Our country was built on freedom of speech. And people should be able to protest and they should be able to do so safely. However, when you violate the law, you will be held accountable. And that’s the duality that we experience here.

And so you have those systems set up for that and you’ve had the Portland police that has been active in these circumstances as well. Again, none of that really lends to the argument for the president needing 200 National Guard troops to protect one building, and also said in the context of his comments earlier today. It’s deeply concerning.

Miller: What is the timing right now for your legal challenges? I mentioned the hearing at 10 a.m. this Friday. Can you give us a broader sense for the calendar as you’re looking at it right now?

Rayfield: What we have done is we got in front of the judge yesterday in scheduling and worked to get this ruling on the merits as absolutely quickly as we can, the ruling on the merits of the motion. A hearing will be happening on Friday. It’s going to be up to the judge, and obviously, they know this is an important decision, and they will be taking time to make sure that they get it right. So how quickly a judge rules is tough to predict. You would hope that it would happen within 24 to 48 hours. But again, there’s a lot of things that can adjust the judge’s schedule as they’re trying to navigate this legal landscape.

Miller: We have just about 30 seconds left, but I’ve read that federal government shutdowns can slow down the work of federal courts. Are you worried about that?

Rayfield: That is not something that I stayed up and worried about. I have a lot of other concerns. I really do believe in our court system and our judiciary, even when it’s under attack. And I think we’ve got amazing judges from all across this country. So I think that this issue will remain a priority for the courts. And my hope is to have an answer for Oregonians sooner than later.

Miller: Dan Rayfield, thanks very much. That’s Dan Rayfield. He is Oregon’s attorney general.

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