Portland law professor says Pres. Trump’s deployment of National Guard Troops likely will not pass legal muster

President Trump’s authorization of the deployment of Oregon National Guard troops to Portland brought swift opposition from civic and business leaders across the state. AG Dan Rayfield has filed a lawsuit and an emergency motion aimed at stopping the deployment.

Lewis & Clark Law professor Tung Yin, author of “National Security Lies,” joins us to share the legal issues involved in President Trump’s deployment of National Guard Troops under Title 10, section 12406 of the U.S. Code, and how the legal challenges are likely to play out.

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

Dave Miller: We’re going to take a deeper legal dive into these questions right now. Earlier this morning, I talked with Lewis and Clark Law professor Tung Yin. I asked him what authority President Trump has invoked to justify sending in the National Guard?

Tung Yin: It would be Title 10, Section 12-406. Title 10 is the United States Code that deals entirely with the military and Section 12-406 is the nationalization of the state National Guard part.

Miller: And what does that code say that’s relevant here?

Yin: Basically, there are three circumstances in which that section would allow the president to nationalize state troops. Those would be if there’s an invasion by a foreign state, an insurrection, or if federal law is effectively unable to be enforced.

It doesn’t really look like there’s any serious claim that there’s a foreign invasion. I know the president has claimed that drug dealers from Venezuela are an invasion, but even if that were true, which I think courts have rejected or will reject, but even if it were true, that’s not the case here. That’s in Florida.

Insurrection, it doesn’t have to be quite like the Civil War, but we’re looking for that sort of complete uprising. And again, a protest outside the ICE building, even if it gets violent, even if you could show that, I don’t think that quite rises to an insurrection.

So the last basis would be the inability to enforce federal law. And we don’t really see that here. ICE is able to go out and do what it’s doing, to detain people that it wants to send into removal proceedings. But if the president could articulate facts to suggest that ICE actually is being obstructed from carrying out its mission, then maybe that might qualify under that third provision.

Miller: Can you remind us how this authority, how nationalizing federal troops, sometimes against the wishes of governors, has been used in the past?

Yin: Yeah, so there’s a different statutory provision under the Insurrection Act which, essentially, can be used maybe if the state is obstructing the federal government. The best example of that was after Brown v. The Board of Education ordered desegregation of schools. We know some southern governors refused and actually used state troops to block children from going to the schools that they now are entitled to go to. And President Johnson, in at least one instance, did order federal troops to go escort the school children into school.

So that’s an example where we have the state fighting with the federal government and obstructing what would be the federal law, in this case, the equal protection clause. So I think we understand that, okay, maybe we do need troops, because when it comes down to the state resisting, then you need to have the bigger army there to enforce federal law.

Miller: Is that something? I mean, has the administration provided evidence to support its invocation of this based on that third provision? Evidence to say here’s what’s happened. Here are the ways in which Portland police have failed to intervene in ways that, in the end, have meant that we cannot enforce federal law. Have they provided evidence for that?

Yin: I think it sounds like the president was relying on some videos. But the videos may have been from 2020, when there were actually attacks on the Federal courthouse and so on. But in terms of evidence versus allegations, I think it’s more claims that we’re seeing. The president claims that Portland is war ravaged, which I assume is an exaggeration but is intended to give the idea that it’s lawless. The president has claimed that the ICE building is under attack every night.

And really what this whole matter will hinge on, in the end, when it gets into litigation when the lawsuit’s been filed, the one that is processed will be the actual evidence presented in the litigation, not claims. How often is the ICE building attacked? When we say ‘attacked,’ what do we mean? Do we mean Molotov cocktails are being thrown against it? Do we mean just graffiti? Do we mean that there are protests and loud noise?

At some point, the judge assigned to the case will have to determine, if we’re operating under 12-406, does this actually satisfy the inability to enforce federal law? Or is this either just legitimate protesting or maybe legitimate protesting plus some degree of street violence, but not of the sort that obstructs federal law?

Miller: I want to hear more about your thoughts about the Oregon lawsuit. But we do have a California one based on the administration’s earlier decision to send thousands of troops, not 200, but something like 4,000 into Los Angeles. What did the federal judge there rule at the beginning of this month?

Yin: So, this is already complicated. But at the trial level, we have what we call a district judge ruled that the president could not do this. It exceeded his authority, based on the actual facts on the ground. That judge issued what we call a preliminary injunction. So the preliminary injunction basically pauses whatever it is that the party that it’s ordered against wanted to do. It’s not a permanent remedy. The idea of it is that we know litigation takes a long time to finish. So while the litigation is going on, we might want to keep the status quo. If the judge feels that what we call ‘the balance of the equities,’ that on the one hand, how likely is the party suing to win and, on the other hand, what is the likelihood of irreparable harm if we don’t enjoin the behavior,

Miller: If we don’t stop the behavior.

Yin: If we don’t stop the behavior, yes. So as a side note, a good example of why we have these preliminary injunctions would be the Birthright Citizenship order that’s under litigation as well. If that order takes effect and it takes two years to resolve, even if, at the end of two years, a court ultimately says, ‘yeah, you can’t do this, you can’t…’

Miller: Meaning you can’t revoke the citizenship of people who are born here?

Yin: You can’t deny it. Yes. But if you didn’t pause that order it would mean that during the litigation, hypothetically two years, there would be a whole bunch of people who were born here who would not be citizens of the United States. And they might not be citizens of anywhere, depending on how far you trace back the ancestral lineage.

Miller: In other words, the harm there was seen as serious enough by judges, that they said even though this has not gone through all of the legal channels, we’re not going to let it go through now. First of all there’s a chance, a good chance we don’t think it’s going to survive a legal challenge anyway. And if we just say, well, let’s let it go in the meantime, many people will be seriously harmed?

Yin: Yes.

Miller: Is there a connection between that reasoning and the L.A., or now Portland, cases?

Yin: Well there is, although what’s a little more challenging is that in the L.A. case, the Ninth Circuit Court of Appeals, which is the Court of Appeals level above the trial levels, dissolved the preliminary injunction. So that means that what the trial level judge had said, [which was] ‘hold on, you can’t do this,’ the Ninth Circuit said, ‘well, we’ll get to that, but right now we’re not saying the president can’t do it.’

Miller: Meaning, among other things, that that California case, based on Los Angeles, does not have an exact bearing on the Portland case?

Yin: Well, it does not have exact bearing in the sense that that’s about whatever’s happening in L.A. And you have to look at the facts on the ground in L.A. So even if, let’s say we fast forward and there’s a resolution to that case. And the resolution is either the president can or cannot do what he wants to do in L.A. That has binding effect on the president and L.A. or California. But it doesn’t have what we would call binding effect on anywhere else, because Portland and Oregon are not a party to the case, and only parties to the case are actually bound by the order. So this means if either side violates what they do/what they’re not allowed to do by the court ruling, they’re actually in contempt of court. You could bring proceedings that way.

What happens in L.A. could have bearing here though, in the sense of what we call ‘persuasive authority.’ So with the trial judge’s ruling in L.A., the judge here in Oregon might look at that and say, ‘I know we’re not bound by that. I’m not bound by what another equivalent judge has decided. But I think that this looks basically the same. We have claims of riots and attacks of federal buildings, but I don’t see the evidence there, and they didn’t see the evidence in L.A. And the ultimate conclusion the trial judge had was that you can’t do this. I’m persuaded by that.’

Miller: We’ve been focusing so far, if I understand the legal issues correctly, on whether or not the president can lawfully federalize the National Guard for a particular situation and send troops in. To me, that’s different than whether or not, once those troops are there, if what they are doing is legal. Particular actions, say, for example. Because I thought that the California judge said that his ruling was also saying that they were doing things that they shouldn’t have done. They were doing law enforcement and that’s not legal. So are these two separate issues, both whether or not they should be there in the first place, and if they are there, are they doing things that they are authorized to do?

Yin: No, that’s right. They’re related of course, because they both stem from federal law: what is authorized and what is forbidden. But they are two issues so I think you’ve summarized it correctly. The first issue is, again, whether the president has the authority to do what the president is doing? And that’s what we previously discussed under 12-406. If we just assume that the president is able to nationalize the troops, then the next question is what are the limitations on what the president can do with those troops? And that’s where we need to bring up the Posse Comitatus Act. It’s a post-civil war law that essentially says you cannot use the military domestically for law enforcement purposes.

So what do we mean by ‘law enforcement purposes’ and what would not be law enforcement purposes? Well, if the whole idea is that this is defending federal property from attacks, again we might hypothesize a certain set of facts that would allow the president to call out the troops. Maybe the protesters are attacking ICE officers as they’re coming into the building or exiting the building, throwing Molotov cocktails and so on. The troops might therefore be allowed to protect the federal building. So protection of the building is not law enforcement, it’s defending federal property.

But if ICE agents say, ‘hey, we’re gonna go raid this warehouse and look for undocumented immigrants. We could use your backup. Come with us.’ Now the troops would be helping engage in what would be essentially law enforcement. In this case ICE is technically not law enforcement in terms of policing, but obviously it’s still carrying out civilian law. Or if FBI agents say, ‘hey, we have a lead on somebody who’s helping smuggle people in to evade immigration laws, come with us to raid their home to help us search.’ Again, doing a search, even pursuant to a search warrant, is law enforcement.

Miller: Even if, in the end, it is federal law enforcement who is actually doing the arrest, a judge would say ‘no, this, this is illegal because part of the support was the military, were members of the National Guard?’

Yin: Right.

Miller: We were in Eastern Oregon yesterday working on a future show and at one point we talked to some folks in Hines, outside of Burns in Harney County, to get their take on this news. I met a man named Chris Larson there. He lived in Portland, he said, for a number of decades and he moved to Hines because the city had become in his words, ‘pig slop.’ I want to play you part of what he told me.

Chris Larson: I just like to see the homeless and everything got off of there and people stop harassing law enforcement. Let law enforcement do their job, enforce the laws we have, and move forward. I have people in law enforcement that I know and they just can’t get the directive from upstairs to do their job and they’re frustrated also. So if the feds got to come and do it, so be it.

Miller: Can federal officers or federal troops do anything about homelessness in Portland?

Yin: No. So again, to boil this down very simply, we have a federalist system, meaning we have state and federal government. Each has its own domains. The federal government and federal law enforcement can only do what they’re authorized to do by the Constitution and federal law. And regular policing is a strictly state matter. So unless you could point to some federal law that gives the FBI or whoever the authority to police the streets, it’s not within their jurisdiction.

Miller: The timing right now is interesting. The spokesperson for the Oregon National Guard has said that the earliest troops could actually be in Portland is Thursday, but he’s not betting on that. It might not be until next week. There has to be a vetting process and a volunteer process. We just don’t know when they’re going to be there. On Friday, that’s when the first hearing is scheduled in Federal district court. What do you see as the possible timing here for a ruling that could actually have a real bearing on this matter?

Yin: Well, I think the first thing would be to get a temporary restraining order which is similar to the preliminary injunction we discussed earlier, except that it’s quick and dirty. The idea of the TRO is that we need to allow the parties time to prepare for the preliminary hearing. But in the meantime, maybe we need to keep the status quo, again, for similar reasons.

Miller: Could that come on Friday?

Yin: I would expect that that’s the first thing that the state has asked for, so that would only be very short term, maybe a week, 10 days, something like that, so that during that intervening time, the parties would be getting ready to litigate the preliminary hearing motion which would be more of a preview of what we think the judge is likely to rule, but again not a final ruling.

Miller: Finally, about a week ago, the president designated antifa as a domestic terror organization. What are the legal implications of that and is that connected to this federalization of the Oregon National Guard?

Yin: It’s not clear to me what that really means. It is a defined term in the federal statutes, the terrorism statutes, but there’s no consequence to it. Whereas there is for being designated a foreign terrorist organization. So I suppose this is a bit more of the rhetoric. Maybe if, again, we hypothesize a certain set of facts that don’t seem to exist but could possibly and if there was some evidence that you had antifas as a coherent organization as opposed to sort of a collective in different cities and so on. But at least here in Portland, you have a coherent antifa and they are plotting attacks against the ICE building, it doesn’t really matter if you call them a domestic terrorist organization. At that point, if you actually have evidence that that’s what’s going on ‒ again, I’m speaking purely hypothetically here ‒ then again, you could act on that. You could prosecute for conspiracy to engage in terrorism and maybe again that might be a call for the troops to defend the targets of this sort of hypothetical terrorism.

Miller: Tung Yin, thanks very much.

Yin: Thank you.

Miller: That was Lewis and Clark Law professor Tung Yin. We talked earlier this morning.

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