Portland’s Judicial Overreach: Judge Immergut Is Rewriting The Constitution

The federal judiciary’s job is not to second‑guess the commander in chief’s decision to protect the United States. Yet that is precisely what Judge Karin Immergut did when she barred President Trump from invoking his statutory authority under 10 U.S.C. §12406 to federalize the Oregon National Guard and reinforce the beleaguered federal law enforcement officers defending the Portland ICE facility. Her Temporary Restraining Order rests on three pillars, all of them cracked. First, she converted a deferential, commander‑in‑chief‑laden statute into an ordinary fact‑finding exercise. Second, she narrowed the terms “rebellion” and “inability to execute the laws” beyond the text, history, and controlling precedent. Third, she elevated speculative state interests above the federal government’s undisputed duty to protect its officers and property. Each misstep undermines not only the president’s statutory power but the separation of powers itself.

Section 12406 was drafted for moments exactly like Portland’s siege. It allows the president to call forth the militia when the United States is invaded, when there is rebellion, or when “the President is unable with the regular forces to execute the laws.” The Supreme Court has long held that the determination of whether those circumstances exist belongs exclusively to the president. In Martin v. Mott (1827), Justice Story made it plain that this judgment is “conclusive upon all other persons.” The judiciary may not substitute its own factual judgment for that of the executive when Congress has explicitly entrusted the decision to the president. Luther v. Borden reaffirmed this logic, recognizing that questions about insurrection or rebellion are political in nature and committed to the political branches. Yet Judge Immergut treated the President’s invocation of §12406 as an ordinary administrative action subject to evidentiary cross‑examination.

The Ninth Circuit’s decision in Newsom v. Trump provides a framework for limited review. Even under that deferential standard, the president need only have a “colorable basis” for his determination. That is a deliberately low threshold, reflecting the constitutional reality that decisions about rebellion and enforcement capability lie at the heart of executive discretion. The court may ask whether the president acted within a “range of honest judgment,” but it cannot reweigh nightly police reports or social media chatter. Judge Immergut’s TRO did precisely that. She combed through Portland Police Bureau logs from the days before the president’s order, noting the absence of major protests and concluding that the president’s decision was “untethered to the facts.” That approach ignores that the Portland Police are collaborating with antifa-aligned elements, refusing to intervene near the ICE facility and even allowing these groups to control traffic in the surrounding area. Relying on the logs of an agency that shields the very insurgents threatening federal authority is not just mistaken, it is constitutionally reckless, ahistorical, and unconstitutional.

By substituting her own localized snapshot for the president’s broader view, Judge Immergut ignored the sustained, monthslong campaign of violence and intimidation directed at federal personnel. Federal Protective Service officers had faced repeated assaults, doxxing, and harassment. The ICE facility was forced to close for three weeks because FPS lacked the manpower to keep it open safely. Agents from Homeland Security Investigations were pulled off criminal cases and redeployed merely to hold the perimeter. These are precisely the “inability with the regular forces” conditions that §12406 contemplates. The president’s judgment that the federal government could not safely execute its laws in Portland was therefore not only colorable but plainly supported by the record.

Immergut’s reasoning also narrows “rebellion” to a degree unknown in American law. She defined it as organized, armed resistance aimed at overthrowing the national government. That definition may fit 1861, but not 2025. The statute’s plain text covers both “rebellion” and “danger of” rebellion. Historically, presidents have invoked the militia power not only for wars or secessionist movements but for violent defiance of federal authority. Washington did so during the Whiskey Rebellion to suppress armed tax resisters. Cleveland sent federal troops to Chicago to end the Pullman Strike when federal mail service was obstructed. Eisenhower deployed the 101st Airborne to Little Rock to enforce federal civil rights orders against local obstruction. None of those incidents involved organized efforts to overthrow the government. They all involved violent resistance to the execution of federal law. That is the operative standard, and it is one that the Portland record easily meets.

When anarchist mobs besiege a federal building, assault officers, and publish their home addresses, the danger of rebellion is not speculative. It is real. The president need not wait until protesters hoist a secessionist flag before acting. Judge Immergut’s insistence on temporal proximity and complete paralysis ignores the anticipatory nature of the statute. “Unable” and “danger” are predictive terms. Congress intended them to authorize action before calamity, not after. By requiring proof of riots “in the days leading up” to the order, the court transformed §12406 into a reactive instrument rather than a preventive one. Ironically, on the very night Judge Immergut convened her emergency hearing to block the president from sending in federalized National Guard units from California and Texas, Portland authorities themselves declared a riot. What was unfolding on the streets of her own city at that very hour contradicted her claim that no such violence was occurring. The Constitution does not require the commander in chief to play whack‑a‑mole with insurgents.

The court’s reliance on local police dispatch summaries further compounds the error. Portland’s political leadership had already declared that city police would not cooperate with federal agencies at the ICE site. The mayor even instructed officers to stand down during prior attacks. Under those circumstances, citing local calm as evidence against federal necessity is perverse. Judge Immergut ignored sworn declarations from DHS and FPS, the very agencies whose personnel were under attack, and instead credited reports from city police who had been ordered not to get involved. Their logs reflected their deliberate non‑involvement, not an absence of violence. The relevant question is not whether Portland police reported a quiet week but whether federal officers could execute federal law without undue risk. The record, including those sworn declarations, answers that question decisively in the negative.

The TRO’s 10th Amendment analysis fares no better. Immergut reasoned that federalizing the Oregon National Guard infringed state sovereignty because it deprived Oregon of control over its troops. But that objection collapses once §12406 is lawfully invoked. The National Guard is a dual‑enlistment force, simultaneously part of the state militia and the federal reserve components of the Army and Air Force. When called into federal service, Guardsmen operate under federal command. The Supreme Court confirmed this in Perpich v. Department of Defense (1990). Thus, once the president lawfully federalizes the Guard, anti‑commandeering concerns vanish. The state no longer “owns” those troops in any operational sense. Immergut’s ruling therefore confuses the threshold statutory question with the constitutional one.

Even if one entertained Oregon’s sovereignty arguments, its alleged harms are speculative and self‑inflicted. The state claimed loss of control and diversion of resources, yet the federal government had first offered a cooperative Title 32 arrangement that would have left command in state hands. Oregon refused. Having rejected that partnership, the state cannot now cry injury from the consequence of its own political posturing. Nor can the mere fear of “larger protests” justify blocking federal protection of federal property. That is a heckler’s veto by another name, and it has no place in equitable analysis.

The public interest and balance of harms weigh overwhelmingly for the executive. Protecting federal officers and facilities is not just a legitimate interest, it is an imperative. The Ninth Circuit has already recognized as much in prior cases. The Portland ICE facility, like any federal installation, symbolizes the authority of the United States itself. To allow it to be overrun or indefinitely shuttered would signal that federal law can be nullified by local hostility. The president’s duty to ensure that the laws are faithfully executed does not end at the city limits of Portland.

Finally, Judge Immergut’s remedy is breathtakingly overbroad. The action she enjoined is the President’s federalization order itself, an act not reviewable under the Administrative Procedure Act. The APA excludes the president from its definition of “agency,” a point made clear in Franklin v. Massachusetts. At most, the court could have tailored relief to prohibit certain law‑enforcement activities by Guard personnel. Instead, it froze the entire deployment, effectively dictating national security policy from chambers. That remedy far exceeds any permissible judicial role.

The broader implications are grave. If left standing, this ruling would turn every domestic security decision into a judicial debate club, with district judges parsing protest footage and social media posts to decide whether the president’s perception of danger is reasonable. That is not how a constitutional republic functions. The president commands; courts interpret law, not live intelligence. Judicial modesty, especially in matters touching military command, is not a courtesy to the Executive, it is a safeguard of the constitutional order.

The government’s request for a stay pending appeal should therefore be granted. The TRO fails under any standard of review. The president had a colorable basis, indeed an overwhelming one, to conclude that regular forces were unable to execute the laws and that there was a danger of rebellion. Oregon’s harms are illusory, the equities and public interest favor the United States, and the remedy is unsustainable. The district court’s order should be stayed and ultimately reversed.

To preserve the separation of powers, courts must remember that the commander in chief’s authority is not a law school hypothetical. It is a constitutional responsibility. When federal officers are attacked for enforcing federal law, and when state and local officials refuse cooperation, the president’s duty to act is not optional. Section 12406 entrusts that duty to him alone. The judiciary’s role ends where the Constitution’s allocation of command begins.

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