In previous posts, I have argued that Trump's biggest mistake was following the recommendations of Leonard Leo and the Federalist Society in his judicial appointments because judges who are constitutional originalists and textualists will not support Trump's claim that "as President, I can do whatever I want to do"--that is, become a dictator unconstrained by law.
The most recent case illustrating this point came just a few days ago--State of Oregon and the City of Portland v. Donald Trump et al. On Saturday, U.S. District Court Judge Karin Immergut issued a temporary restraining order halting Trump's deployment of National Guardsmen to Portland, Oregon, as an unconstitutional act. She declared: "this is a nation of Constitutional law, not martial law." To show that the American Founders feared the sort of military tyranny that Trump is now launching, she quoted from James Madison at the Constitutional Convention: "A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defense against foreign danger have been always the instruments of tyranny at home."
Remarkably, Judge Immergut was appointed to her position by Trump in 2019. But now Trump says "to have a judge like that, that judge ought to be ashamed of himself" (strangely referring to her as a man).
As in so many previous cases, Trump is being frustrated by judges he appointed because their jurisprudential originalism and textualism deny his claims to dictatorial power. If Trump were smart, he would scorn conservative jurisprudence and argue for a "living constitution" that allows the president to rule as a king above the law.
Judge Immergut's case involves Trump's order on September 27, 2025, directing Pete Hegseth to provide troops to protect "War ravaged Portland" from "Antifa, and other domestic terrorists" and authorizing "Full Force, if necessary." Hegseth authorized the deployment and federalization of 200 of Oregon National Guard service members to be sent to Portland, even though Oregon's Governor, Tina Kotek, objected.
Under the Militia Clause of the U.S. Constitution, Congress has the power "to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions" (Art. I, sec. 8, cl. 15). In the Militia Act of 1792, the Congress first delegated this Congressional authority to the President to call forth the militia in extraordinary circumstances. The modern version of that law is the Militia Act of 1903, which today is codified as 10 U.S.C, sec. 12406, which says that the President may federalize National Guard service members if:
(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(2) there is a rebellion or danger of rebellion against the authority of the Government of the United States; or
(3) the President is unable with the regular forces to execute the laws of the United States.
In this case the Defendants (Trump et al.) argued that Trump's military mobilization for Portland was authorized under the second two conditions: there was "rebellion or danger of rebellion against the authority of the Government of the United States" in Portland, and the President was "unable with the regular forces to execute the laws of the United States" in Portland.
Judge Immergut employs a strict textualist standard to rebut the appeal to "rebellion." She asks how would the Congress have understood the term "rebellion" in 1903 when it passed the Militia Act of 1903? Drawing from a previous case, where the court surveyed four dictionaries from the late 1800s and early 1900s, she states this definition:
First, a rebellion must not only be violent but also be armed. Second, a rebellion must be organized. Third, a rebellion must be open and avowed. Fourth, a rebellion must be against the government as a whole--often with an aim of overthrowing the government--rather than in opposition to a single law or issue.
By that definition, Judge Immergut concludes, the protests in Portland were not a "rebellion."
She also concludes that the history of the protests in Portland from June to September do not show that the President was "unable with the regular forces to execute the laws of the United States." She surveys the record of the protests in Portland to show that while the disruption outside the Portland ICE facility peaked in June of 2025, federal and local law enforcement quelled the disorder. And, more importantly, as of September 27, 2025, when Trump issued his order, there had been months without any serious level of violent or disruptive protests in Portland.
Trump said that Portland was "War ravaged," and there was "lawless mayhem" and "Chaos, Death, and Destruction." But Judge Immergut observed: "The President's determination was simply untethered to the facts."
Federal judges have said that in such cases, the courts must show "a great level of deference" to the President's judgment. But still, the courts must "review the President's determination to ensure that it reflects a colorable assessment of the facts and law within a range of honest judgment."
In this case, any reasonable assessment of the history of the protests in Portland over the three months before Trump's order on September 27 do not support his claim that "War ravaged Portland" required federal military intervention.
TRUMP'S CIVIL WAR?
It is easy to predict, however, that Trump will soon employ a new legal maneuver to justify his imposition of martial law on cities and states that he sees as under the control of Democrats and thus constituting "the Enemy Within"--in other words, his political opponents.
He will invoke the Insurrection Act of 1807. Here's the crucial clause:
An Act authorizing the employment of the land and naval forces of the United States, in cases of insurrections
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.
In 1861, at the beginning of the Civil War, a new section was added to allow the President to use the militia (the National Guard) and the regular military forces against the will of state governments in the case of "rebellion against the authority of the government of the United States."
We can foresee that Trump will declare that states like Illinois, Oregon, and California are in rebellion against the government of the United States, and therefore he will launch a full military invasion of those states.
We will then see whether the courts can stop him.
But the ultimate question is whether the U.S. military will obey his orders. When they are ordered to kill Americans protesting Trump's dictatorship, will they obey?
Previously, I have written about how in the last two months of his first term, after he had lost the election, Trump did not have the guns or the guts for becoming a military dictator. He did not have the guns because military leaders such as General Mark Milley (Chairman of the Joint Chiefs of Staff) made it clear that they would not allow the military to support a presidential dictatorship. And he did not have the guts because he lacked the courage to assert his dictatorial will in violation of the Constitution.
But now it might be different because Trump is surrounded with sycophantic loyalists eager to obey his every whim.
We can hope that the U.S. military will resist. A few days ago, when Hegseth and Trump gave their political speeches (for over two hours) to all of the top U.S. military leaders from around the world gathered in Quantico, Virginia, there was no applause from the audience, and Trump was clearly disturbed by that silence. That's a good sign of resistance.
Another good sign is that when ICE has tried to prosecute protesters for harassing them, grand juries are refusing to indict. This has already happened in Washington, D.C., Illinois, and California. It is also possible that even if indicted and taken to trial, people resisting ICE can expect that juries will refuse to convict them. Jury nullification has a long history in America as a way for citizens to impede unjust laws and governmental misconduct. For example, this was one way that citizens resisted the enforcement of the fugitive slave laws before the Civil War and thus protected runaway slaves from being captured.
Trump and his people could evade this constraint of jury nullification by suspending the writ of habeas corpus, which would allow them to arrest and imprison anyone--to "disappear" them--without having to give any legal justification. This would be the ultimate suspension of all individual rights. Stephen Miller has proposed this. That would be a police state.
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