On Monday, two judges from the 9th U.S. Circuit Court of Appeals granted President Donald Trump significant authority to deploy the National Guard in Portland, Oregon. This decision comes amidst ongoing protests, which the Trump administration has characterized as a “war zone.” The ruling was made with a 2–1 vote, largely siding with the executive branch’s claims of violence.
Judicial Ruling and Dissent
Judge Susan Graber dissented, emphasizing that the deployment was based on “false pretenses” and “political theater.” She labeled the military action as an “illegal deployment of troops.” The majority opinion largely accepted the administration’s narrative, dismissing the extensive evidence presented by the district court.
Concerns Over Presidential Authority
Judge Ryan Nelson, in a concurrence, asserted that the judiciary lacks the power to review a president’s authority to deploy the National Guard. He contended that Trump possesses absolute discretion to send troops into cities, suggesting that courts cannot intervene in such matters.
This viewpoint raises alarming concerns about the potential for unchecked presidential power. Critics argue that if upheld, such authority could allow Trump to deploy troops against dissenters, voters, or political opponents, particularly in Democratic strongholds.
Historical Context and Legal Precedents
The ruling references historical cases, particularly the 1827 Supreme Court case Martin v. Mott, which supported the president’s powers during national emergencies. However, legal experts contend that the interpretation made by Nelson mischaracterizes this precedent.
According to constitutional scholars, the ruling in Martin v. Mott allowed for the initial determination of an emergency to be made by the president but did not eliminate judicial review. Modern statutes, significantly revised from earlier militia laws, impose stringent conditions on the president’s ability to federalize the National Guard.
Current Legislative Framework
The current congressional statutes allow presidential deployment of the National Guard only in cases of insurrection or rebellion, or when regular forces cannot enforce federal laws. This contrasts sharply with Judge Nelson’s interpretation of the law, which many view as a dangerous overreach.
Implications for Democracy and Constitutional Authority
Many legal experts express concern that abolishing judicial review could empower the president to deploy troops at will, infringing on citizens’ rights. Such a precedent would undermine Congress’s authority over the militia and could lead to serious civil rights violations.
The Supreme Court will soon hear related cases that may shape the boundaries of presidential power regarding domestic deployments. With significant implications for American democracy, the outcome may determine whether military force can be wielded against peaceful citizens exercising their First Amendment rights.
