President Donald Trump has attempted to deploy National Guard and active-duty soldiers into at least five major Democratic-led cities across the U.S.
Following his deployments in Los Angeles; Washington, D.C.; Memphis, Tennessee; and Portland, Oregon, Trump this week made good on his monthslong threat to send soldiers to Chicago, the third-largest city in the country.
Stemming from his long desire to deploy the military internally, Trump’s snap mobilizations blatantly violate the country’s longstanding democratic practice of constraining the use of soldiers to enforce federal law.
His actions have also set off a blizzard of lawsuits seeking to block the deployments or curtail the ways in which the Trump administration is using troops. Here’s where those legal fights stand.
But first, some background.
How Trump is Mobilizing the Troops:
Under federal law, the president, despite being commander in chief of the armed forces, is significantly limited in how he can deploy the military at home. And it’s by design.
Because of their experiences with the British military during the colonial era, the Founders were deeply distrustful of powerful standing armies, fearing they could become instruments of tyranny.
As a result, the Constitution and subsequent legislation established specific constraints on the president’s power over the military domestically. This aversion to troops in the street is most clearly enshrined in the Posse Comitatus Act (PCA), a nearly 150-year-old statute that bars the president from using the military for civilian policing, with only a few exceptions.
The PCA stands as the chief legal hurdle to Trump’s impulse to use troops as police.
To mobilize Guard troops, and potentially get around the PCA, Trump has so far relied on two statutes: 10 U.S.C. 12406 (Title 10) and Title 32.
An archaic and rarely invoked law, Title 10 allows the president to federalize state Guard troops when the country faces foreign invasion, when the U.S. government faces rebellion or when the president is unable to execute laws with regular resources.
Guard troops federalized under Title 10 are equivalent to active-duty military soldiers, and as a result, they are subject to the PCA and cannot enforce federal law.
Until this year, there was little case law on Title 10 because past presidents hardly ever invoked it. Before Trump, President Richard Nixon last used the law in 1970 to federalize the National Guard to deliver the mail during a postal worker strike.
Legal experts have called for Title 10 to be reformed due to its concerningly vague language. In defending Trump’s deployments, the Department of Justice (DOJ) has pounced on the law’s ambiguity to make expansive claims of authority to send soldiers onto American streets.
Title 32: A somewhat newer law, Title 32, passed in 1956, outlines the role of the U.S. National Guard. Soldiers activated under Title 32 are in a “hybrid” status because they are neither under full state or federal control. The troops are under the command and control of their state governor, but their duty is federally funded and regulated.
Because soldiers remain under state control, they are not subject to the PCA. They therefore are not barred from participating in domestic law enforcement activities, though whether and to what extent they can do so is legally disputed. Experts have also warned that Title 32 hybrid status could be a dangerous loophole to the PCA.
How Trump is Assigning Troops’ Duties:
Trump has largely assigned troops to support and protect federal personnel and property — specifically the federal agents carrying out his mass deportation campaign and the processing and detention facilities at the center of the effort.
In giving troops this supportive mission, Trump has not relied on a specific statute. Instead, he and the DOJ are relying on a contested interpretation of executive authority called the “protective power.”
The theory asserts that because of the president’s inherent constitutional responsibility to see that laws are faithfully executed, using troops to protect federal personnel, property and functions cannot violate the PCA.
While past presidential administrations have also advanced the theory, experts and judges have warned that the Trump administration is pushing it to extremes through the recent supportive missions.
Chris Mirasola, a national security law professor at University of Houston Law Center, told Democracy Docket that having troops directly protecting Department of Homeland Security (DHS) officials carrying out federal immigration arrests heavily blurs the line between the military and police.
“In almost any circumstance you can imagine, in actually acting upon this authority, you are almost necessarily pervading the law enforcement activity,” Mirasola said. “Do we really think that if that person escapes from the [Immigration and Customs Enforcement (ICE)] officer’s hands that the military officer is going to stand there and do nothing?”
Chicago:
After threatening to do so for weeks, Trump last week federalized 300 members of the Illinois Guard under Title 10 for 60 days to assist ICE and other federal law enforcement officials in Chicago.
The president did so through a private memo to Defense Secretary Pete Hegseth, the contents of which only became available to the public days later.
In addition to federalizing Illinois troops, Trump also called up 400 members of the Texas Guard for deployment beyond the state of Texas, “including in the cities of Portland and Chicago.”
Though it was not announced to the public, members of the California National Guard federalized by Trump earlier this year were also sent to Illinois, according to court documents.
Trump alleged troops were needed because federal agents were unable to enforce law because of protests over DHS’ recent aggressive immigration operations in Chicago. But Trump has also repeatedly linked a Chicago deployment to general crime in the city, even though the PCA generally prevents soldiers from acting as routine police officers.
Illinois and Chicago sued earlier this week, alleging the deployment was based on false claims and threatened the state’s 10th Amendment right to self-governance. They asked U.S. District Judge April Perry for a temporary pause to Trump’s deployment before troops began arriving in the state, though she declined to immediately grant one.
After a hearing Thursday, Perry enjoined the Trump administration from ordering the federalization and deployment of the National Guard within Illinois for 14 days after finding that Trump and DHS’ claims about conditions in Chicago were not credible and that protests have not impeded the enforcement of federal law.
The Trump administration appealed the temporary order to the Seventh Circuit Court of Appeals.
Portland:
Late last month, again using Title 10, Trump federalized 200 Oregon Guard troops for deployment in Portland, also claiming that ICE-related protests in the city warranted their deployment.
Portland and Oregon sued, also arguing that the deployment was “patently unlawful” and violated the Constitution. Trump’s claims about the city were also refuted in court by local and state law enforcement officials.
U.S. District Judge Karin Immergut, a Trump appointee, quickly blocked the deployment, saying Trump’s “determination was simply untethered to the facts” and therefore he lacked the authority to federalize the Oregon Guard.
In response to Immergut’s order, the government attempted to send California Guard troops previously federalized by Trump into Portland. The judge said the move was “in direct contravention” of her earlier decision and issued a second order flatly barring Trump from deploying any federalized Guard in the state.
A three-judge panel for the Ninth Circuit Court of Appeals temporarily stayed Immergut’s first order in response to a request from the DOJ. But her second order remained in effect because the government did not challenge it.
The panel held a hearing Thursday on Trump’s appeal of Immergut’s first order. At least two of the judges appeared skeptical of the district court judge’s conclusion that the military was not needed to keep ICE-related protests in Portland under control.
If the Ninth Circuit overturns Immergut’s first order, a DOJ attorney said the government would ask her to dissolve her second order, as well, which would clear the way for Trump to deploy troops to Portland.
Los Angeles:
Trump federalized around 4,000 California Guard soldiers under Title 10 in response to ICE-related unrest in LA. It marked his first domestic deployment since returning to the White House.
Even though Title 10 does not give the president the ability to deploy regular federal soldiers — such as from the Army or Air Force — domestically, Trump also deployed around 700 hundred Marines to LA citing the protective power theory.
U.S. District Judge Breyer blocked the deployment in response to California’s lawsuit. However, a separate Ninth Circuit panel later stayed his ruling, finding that conditions in LA warranted Trump’s use of Title 10.
The panel, however, rejected the Trump administration’s extreme argument that courts could not review a president’s decision to activate the Guard under the statute. It said judges do have that authority though any such review must be “highly deferential” to the president.
A three-day non-jury trial this summer revealed close coordination between military troops deployed in the city and federal agents carrying out immigration raids, executing arrest warrants and conducting drug operations.
Evidence presented at trial showed that troops, who were only authorized to protect federal personnel and property, performed security functions during law enforcement operations, set up perimeters and road blockades and, on at least two occasions, detained civilians.
After the trial, Breyer found in a separate order that Trump’s use of the military violated the PCA and enjoined the federal government from using military troops in immigration raids or other law enforcement operations in California.
The administration appealed Breyer’s second ruling on PCA violations, and a Ninth Circuit panel granted the request. The Ninth Circuit will hear oral arguments on the administration’s appeal later this month.
Though most of the California Guard have been demobilized, hundreds of them remain under federal control even though unrest in LA has subsided.
Washington, D.C.:
The same day the trial on his use of troops in LA convened in California, Trump announced he would also deploy D.C. Guard troops to the nation’s capital. He claimed the soldiers were needed to respond to a “crime emergency,” even as data from the DOJ showed that crime in the district had been falling.
Unlike his other deployments, Trump did not cite Title 10 or Title 32, as the president has direct command over the D.C. National Guard.
Several Republican governors also announced they would send thousands of their own Guard troops to D.C. under Title 32, even as violent crime rates in some cities in their own states were higher than the district’s.
In D.C., the troops have not been authorized for direct law enforcement, like searches and arrests, though they are armed with service pistols and are able temporarily detain people to prevent imminent harm.
D.C. Attorney General Brian Schwalb challenged Trump’s massive deployment in the capital in a lawsuit last month, alleging that the deployment violated the PCA because troops were conducting “core” law enforcement duties, including “presence patrols” and “community patrols.”
Because of the unique arrangement between the president and the D.C. Guard, the DOJ has asserted that the D.C. Guard troops are not subject to PCA, though legal experts have noted that the claim hasn’t officially been tested in the courts.
More than half the GOP-run states that deployed troops to D.C. were expected to remove their troops in late October and November, AP reported.
Memphis:
After flooding D.C. with soldiers, Trump said he would also send the Tennessee National Guard into Memphis, Tennessee, as part of a massive federal crime task force in the city.
While local leaders welcomed the additional federal assistance to curb crime, they said they opposed troops in Memphis, which is one of the largest predominantly-Black cities in the country.
Weeks after Trump’s announcement, troops were seen patrolling in the city for the first time Friday, AP reported.
The soldiers were expected to be deputized by the U.S. Marshals Service and work alongside from more than a dozen local, state and federal law enforcement agencies, according to the Tennessean.
The troops were deployed under a Title 32 agreement with Tenneseee Gov. Bill Lee (R), who sent at least 160 members of the Tennessee Guard to D.C.
While under Title 32 the Tennessee soldiers are not subject to the PCA, Tennessee’s constitution places strict limits on the use of Guard troops to enforce state law.
“The Militia shall not be called into service except in case of rebellion or invasion, and then only when the General Assembly shall declare, by law, that the public safety requires it,” it reads.
As of Friday afternoon, the Tennessee legislature had not declared that public safety warrants troops in Memphis, nor had Lee declared a state of emergency on crime in the city, the Tennessean reported.
Tennessee Democratic lawmakers have accused Lee and state Attorney General Jonathan Skrmetti of violating the state constitution through the deployment.
What comes next?:
Mirasola, the Houston law professor, said he expects appeals courts to continue voiding district court orders blocking deployments, though they may be more open to considering if specific military and police operations violated the PCA.
Mirasola warned though that Trump may resort to more extreme measures if he faces additional pushback from the judiciary.
In response to recent court orders, Trump and senior White House officials have raised the possibility of invoking the Insurrection Act, one of the president’s most powerful emergency authorities.
The rarely used law allows the president to deploy military forces within the U.S. to suppress rebellion, domestic violence or lawless behavior. The act is the primary exception to the PCA, and experts have warned it is ripe for abuse.
Trump in the Oval Office Monday said he may invoke the act to sidestep court rulings blocking the dispatch of Guard troops.
“It’s been invoked before,” Trump said. “We have an Insurrection Act for a reason.”