President Trump is bucking tradition and legal precedent in pushing to deploy the National Guard to Democratic-led cities such as Portland, Ore., and Chicago due to what he says is rampant crime and to support his crackdown on illegal immigration.
On Monday, the state of Illinois and the city of Chicago filed a lawsuit to stop the Trump administration from sending National Guard troops to the state – arguing that the administration has exceeded its authority under Title 10, the statute which allows the president to bring the Guard into federal service.
Legal experts say Trump is testing the limits of presidential authority by using the rarely used statute to deploy federal troops to American cities without state approval. And the legal tactic is getting mixed results in federal court.
Oregon and Portland officials successfully delayed efforts to send troops there. But by Monday evening, a federal judge in Illinois declined the request to immediately block the deployment.
Portland and Chicago are just two of the latest cities where Trump has threatened to send troops. He sent hundreds of troops to Los Angeles and Washington, D.C., over the summer and the Guard has also been ordered to Memphis — a move supported by Tennessee's Republican governor.
Who controls the National Guard?
The Guard serves in three types of capacities.
"State active duty" is when troops are under state command and state funded. Title 32 – which is how the Guard is being deployed in Memphis – is when troops are under state command but federally funded. Then, there's Title 10, which is when Guard members are both federally controlled and funded.
According to the provision, the president can deploy the Guard into federal service when the county is under an invasion, a rebellion or danger of rebellion, or the president is unable with the "regular forces to execute the laws of the United States."
In federal court, the Trump administration has claimed that it is unable to "execute the laws of the United States" as it relates to immigration enforcement due to protests in these cities.
"This law hasn't been used in this way before, by any previous president," said Elizabeth Goitein, senior director of the liberty and national security program at the Brennan Center for Justice.
Generally, the National Guard has been federalized and deployed domestically to respond to civil unrest in extreme circumstances, where state and local law enforcement were completely overwhelmed, Goitein said.
Critics of the troop deployments argue that the situations in Portland and Chicago do not rise to the level of a rebellion. They also say that for troops to be federalized, their governor of each state still needs to approve a Title 10 order.
Goitein said, "It's not about whether the federal government should have this authority at all. It's about whether the federal government should be able to use these authorities based on what really appear to be completely contrived claims about the situation on the ground."
Could Trump use the Insurrection Act?
One way that a sitting president has deployed the Guard domestically without a state's consent was through the Insurrection Act – a set of laws meant to address major civil unrest. It also allows federal troops to take part in law enforcement activities like searches and arrests.
It's only been invoked a handful of times in U.S. history, with the last instance being over 30 years ago during the Rodney King riots in Los Angeles.
"For better or for worse, I think the insurrection Act has been a third rail politically for much of its history," said Stephen Vladeck, a professor of law at the Georgetown University Law Center.
In his second term, Trump has floated the idea of using the Insurrection Act. On Monday, when asked by a reporter under what circumstances he would invoke it, Trump said "If people were being killed and courts were holding us or governors or mayors were holding us up, sure I'd do that."
Vladeck doesn't think Trump invoking the law is out of the question. He said, "I think that the administration understands that that would be an even more dramatic escalation."
How are courts responding?
For the most part, federal judges in California and Oregon have expressed wariness and skepticism over the troop deployments.
In California, U.S. District Judge Charles R. Breyer, who has presided over the state's challenge to the Guard deployment, strongly criticized the Trump administration over the move, calling it illegal and asserting that federal officials did not follow proper protocol for federalizing troops.
The 9th Circuit Court of Appeals in California, however, has previously argued that "a great level of deference" had to be given to the president's assessment that a situation required military intervention.
In Oregon, after temporarily blocking the federalization of the state's Guard members, U.S. District Court Judge Karin Immergut ruled that the facts just could not be supported that a military intervention was needed — even if deference was given.
"As soon as the federalized National Guard deploys to Portland, the state of Oregon will suffer an injury to its sovereignty," she wrote Saturday in her order.
It's unclear how a federal judge in Illinois will rule regarding the Trump administration's effort to deploy Guard members there. On Monday, U.S. District Judge April Perry declined to immediately block a troop deployment and gave the administration until the end of Wednesday to respond to the lawsuit filed by state and city officials.
Vladeck believes it will be up to the courts to check presidential authority on this issue.
And, he said "sooner or later" the Supreme Court will have to weigh in on what circumstances support military intervention in American cities.
"We've been fortunate for 230 years to not have to worry about where the line is between permissible and impermissible uses of those authorities," he said. "That luck has run out, and now we really are at a point where the question is going to be: Do courts have the power to draw a line in the sand? And if so, where is that line?"
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