As Oregonians and the White House await a ruling from the U.S. Court of Appeals for the Ninth Circuit on whether President Donald Trump can deploy 200 members of the National Guard over the governor’s objections, the role a military deployment could play in Portland isn’t clear.

Legal experts say the president is asking the court system to clarify – and even expand – the ways he can use National Guard members on American streets. Many Oregonians, meanwhile, have questioned whether troops are needed at all to enforce laws at regular protests outside a federal immigration building in Portland.

While it remained unclear as of Tuesday how the court would come down on troop deployments, OPB gathered input from experts on some common questions around the issue.

What’s the president’s argument for needing troops?

President Trump’s claims that Portland is burning down and a “war zone” are clearly not accurate.

At the same time, attorneys for the Trump administration argue that troops under the president’s control are needed to relieve federal law enforcement officers, who say they are stretched thin. The administration is seeking a “calibrated” number of troops.

Since June, there have been continuous protests at the Portland U.S. Immigration and Customs Enforcement building. At times, demonstrations have drawn several hundred people as well as moments of violence. The vast majority of the time, however, demonstrations on the city’s South Waterfront have gathered just a few dozen protesters, typically engaged in lawful protests.

What are the president’s powers?

The Trump administration has successfully deployed the National Guard in Los Angeles using a provision called Title 10, which allows the president to federalize the guard. Using that same authority, Trump sent hundreds of federalized California National Guard members to Oregon, but they have not been able to deploy because of a pending legal battle.

The Trump administration has argued the president has broad authority to call up members of the National Guard, even if the governor disagrees.

“There’s nothing in Title 10 that specifically authorizes using the military to protect federal functions,” said Christopher Mirasola, who studies national security at the University of Houston Law Center. Before teaching, he reviewed domestic military deployments at the Department of Defense under President Biden and during Trump’s first term.

Neither the U.S. Constitution nor the way courts have interpreted federal law gives the president the power to use the military to protect federal functions, Mirasola said.

“If it’s not in statute and it’s not clearly in the Constitution, then we have our answer,” Mirasola said.

Members of the executive branch have long held the view that the president doesn’t need statutory authority to use the military for domestic deployments to protect federal property, employees or other functions, Mirasola said. He added that courts are often “quite deferential” to the executive branch in this area, but it’s not a power in the Constitution.

“The executive branch internally has articulated this theory for a very long time, but none of that has been public until very recently,” Mirasola said.

Can the president actually do that?

The question before the Ninth Circuit is about whether the president can even federalize members of the Oregon National Guard because of the facts on the ground.

Under the law, the president can federalize the National Guard if there’s a foreign invasion, rebellion or threat of a rebellion, or the president’s unable to carry out federal law using “regular forces.”

In a pair of decisions issued first on Oct. 4 and again on Oct. 5, U.S. District Court Judge Karin Immergut found the president had not met those factors, and temporarily blocked the Trump administration from federalizing or deploying any guard members in Oregon.

In many ways, what’s playing out in Oregon mirrors a case from earlier this year in California. In June, President Trump federalized 4,000 members of that state’s National Guard amid protests there over stepped-up immigration enforcement.

The Ninth Circuit found the president could federalize the guard and overturned a lower court judge who initially blocked the deployment. But then last month, a federal judge in California found the Trump administration “violated the Posse Comitatus Act willfully.” The Civil War-era law prevents the military from replacing the role of domestic law enforcement.

U.S. District Court Judge Charles R. Breyer said the federalized California National Guard couldn’t police the streets. He did conclude that “federal troops can continue to protect federal property in a manner consistent with the Posse Comitatus Act.”

Rachel VanLandingham, a professor of law at Southwestern Law School in Los Angeles and a retired lieutenant colonel who spent 20 years in the U.S. Air Force, argues the factors on the ground in Portland don’t support calling up the National Guard.

“In L.A. it was already a stretch. Here, it’s beyond a stretch,” VanLandingham said of the situation in Oregon. “There’s simply no facts to support any kind of straight-faced justification or rationale that ICE agents are unable to do their job, and therefore they need military members to come in and help them do their job.”

What will the guard do if they are deployed?

During last week’s hearing before the Ninth Circuit, two judges appointed by Trump during his first term appeared skeptical that they would block the deployment. Appeals Court Judge Bridget Bade seemed to suggest the attorney for Oregon was overstating what a troop deployment to Portland would mean.

“When you say ‘into the streets,’ the deployment is limited just to the protection of federal personnel and federal property,” Bade said.

VanLandingham acknowledged that if the courts allow Trump to federalize members of the Oregon National Guard, there could be a narrow function they may be allowed to perform.

“It could be in Portland that all they’re going to do is send these 200 Oregonian National Guard troops just to stand around the ICE building as a show of force,” she said. “The fear, besides the danger of desensitizing people to the sight of military folks in our city, on our city streets, is that it may actually provoke some violence.”

In California, members of the guard joined immigration officers at times on enforcement and removal operations in July, according to Breyer’s district court ruling.

Appeals Court Judge Ryan Nelson indicated last week in the Oregon case, he was aware the authority and deference courts had given to the president could go too far.

“I’m very sensitive to the slippery slope argument,” he said. “This is something clearly, the founders were concerned about.”

He added that if federalized guard troops “do engage in law enforcement activities, then obviously we have another problem.”

Oregon Gov. Tina Kotek said she’s working with law enforcement and Portland officials on different scenarios, ahead of a ruling from the Ninth Circuit. A spokesperson for the governor said there are several ways the Oregon National Guard could deploy, with the “underlying principle being public safety and the right to express freedom of speech.”

Is the court’s decision final?

Regardless of how the courts come down on whether to temporarily block Trump’s troop deployment order, Oregon still has a lawsuit against the Trump administration that will continue, just on a slower track.

Procedurally, the Ninth Circuit will likely be asked to rehear the case in front of a larger panel of judges.

Mirasola, the law professor, said at some point Oregon’s case or another one like it will end up before the U.S. Supreme Court.

“Courts have not ever engaged with whether the president has an inherent authority to use the military to protect federal functions,” he said. “It’s come up tangentially in one case from the 1800s, but it’s never been litigated squarely.”

OPB’s Lauren Dake contributed reporting.

News Source : https://www.opb.org/article/2025/10/15/national-guard-troops-portland-president-trump-law/