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CHECKS AND BALANCES? DREAM ON IN THE AGE OF TRUMP!  
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Karen J. Greenberg
July 6, 2025
TomDispatch [[link removed]]

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_ Portland in 2020, Los Angeles Today, the United States Tomorrow? _

A demonstrator points his finger towards members of the California
National Guard during a protest against federal immigration sweeps in
downtown Los Angeles, California, June 8., REUTERS/Daniel Cole

 

“I must say,” Donald Trump commented
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“I wish we had an occupying force.” It was June 1, 2020. The
president, then in his first term in office, was having a phone call
with the nation’s governors to discuss the ongoing Black Lives
Matter (BLM) protests taking place nationwide in response to the
murder of George Floyd at the hands of a Minneapolis policeman. He was
urging the governors to call in the National Guard in response to BLM
protests in their states. Otherwise, he threatened he would do so
himself. “You have to dominate,” he told them, while labeling the
protesters “terrorists.” Otherwise, he claimed, “they are going
to run over you.”

Later that morning, Trump left the White House and took his infamous
walk through Lafayette Park, where members of the Washington National
Guard, the FBI, the Drug Enforcement Administration, and several other
agencies, joined by guard units from a number of states, confronted
protesters. As I recounted in my book _Subtle Tools_
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threw eggs, candy bars, and water bottles, while law enforcement shot
rubber bullets, launched pepper balls, and fired tear gas into the
crowd.”

Several weeks later, protests in Portland, Oregon, tested the
president’s resolve to send in an “occupying force.” Although he
didn’t then go as far as to send in the National Guard, as he had
threatened in that phone meeting, he did deploy federal agents
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counter the protesters without consulting the governor of that state.
Seven hundred and seventy-five Department of Homeland Security agents
from U.S. Immigration and Customs Enforcement, U.S. Customs and Border
Protection, and elsewhere appeared on the streets of Portland,
authorized by a presidential edict to protect federal buildings. As if
to intentionally blur the borderline between military and civilian
authorities, the federal agents arrived dressed in black
military-looking uniforms without identifying insignia and drove
unmarked vehicles. The administration justified the deployment by
arguing that local law enforcement was unable to effectively control
the protests.

Not surprisingly, Oregon Governor Kate Brown and Portland Mayor Ted
Wheeler protested, claiming that local law enforcement was perfectly
capable of handling the protests without federal aid, and that the
presence of federal agents, with their aggressive tactics, including
the use of tear gas and rubber bullets, had only provoked the
protesters, making the situation much worse.

Sound familiar? Fast forward to today in Los Angeles.

Donald Trump is once again president, and immigration raids across the
country are hurrying to meet the White House target of 3,000 arrests
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day. This time around, Los Angeles has become the focal point of the
resulting battle over federal versus state authority. In early June,
responding to an outbreak of protests challenging the
administration’s brutal immigration raids, Trump sent 700
active-duty Marines and 4,100 National Guard into that city to counter
the protesters. Los Angeles Mayor Karen Bass, California Governor
Gavin Newsom, and California Attorney General Bonta have protested
resoundingly, claiming, like their Portland counterparts, that the
deployment was unnecessary and counterproductive. Mayor Bass has
maintained
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the local authorities “had the situation under control,”
concluding that “there was no need for the National
Guard.” Summing up
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consequences of the deployment, Governor Newsom considered them to be
“intentionally causing chaos, terrorizing communities, and
endangering the principles of our great democracy. It is an
unmistakable step toward authoritarianism.” Attorney General Bonta
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Newsom by insisting that the troops were instigating violence, not
defusing it, and suing the Trump administration (unsuccessfully so far
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for illegally taking over a state National Guard.

Where all of this may be headed is anyone’s guess, but Portland’s
attempts in 2020 to fight back against the deployment of federal
agents, despite the wishes of local authorities, provide some guidance
about what to expect, as well as lessons learned when it comes to the
role of the courts, of dissent by local and state leaders, and of the
path down which American law may be headed in relation to the
president’s ability to usurp the power of local authorities.

THE LAW

The battle over federal versus state authority is rooted in laws
pertaining to presidential powers. The Posse Comitatus Act, as former
United States Attorney Joyce Vance explains
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“prohibits the federal government from using the military inside of
the domestic United States for law enforcement, absent truly
compelling circumstances.” But there are exceptions. Title 10 of the
U.S. Code fleshes them out, authorizing the president to federalize
the National Guard and deploy it to a state in rare instances of
invasion, rebellion, or the need to “execute laws.”

In Portland in 2020, President Trump labelled the protesters
“terrorists” and threatened
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bring in the National Guard if the protests didn’t stop. Yet days
later, he pulled back from that threat, telling
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Stephanopoulos on ABC News that such a move would have violated the
law. “We have to go by the laws,” he said then. “We can’t move
in the National Guard. I can call insurrection but there’s no reason
to ever do that, even in a Portland case.” He further concluded that
“we can’t call in the National Guard unless we’re requested by a
governor.”

My, how things have changed!

On June 7th, Trump issued a memorandum
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his authority to deploy both the National Guard and the armed
services. “In light of these incidents and credible threats of
continued violence,” the memo authorized the secretary of defense to
coordinate with governors to deploy both the National Guard and “any
other members of the regular Armed Forces as necessary to augment and
support the protection of Federal functions and property in any number
determined appropriate in his discretion.” In other words, Secretary
of Defense Pete Hegseth was given unprecedented authority to direct
events on the home front, challenging the Posse Comitatus Act’s
prohibitions.

Since then, 4,100 National Guardsmen and 700 Marines have arrived
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Los Angeles. Their presence has been notably aggressive. Meanwhile,
Department of Homeland Security agents have swarmed the streets, local
employment places, and immigration offices, not wearing identifying
insignia
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occurred in Portland). As Nick Turse reported at _The Intercept_
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“Since June 8, there have been 561 arrests
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to protests across Los Angeles; 203, for failure to disperse
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were made on the night of June 10, after Trump ordered in the National
Guard and Marines.” Meanwhile, Trump used the growing conflict to
threaten
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Newsom with arrest.

Justifying his deployments, the president labelled the protesters
“insurrectionists,” laying the groundwork for invoking the
Insurrection Act, which, as Joyce Vance explains
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“allows the military to be used for domestic law enforcement, but
— and it’s an important caveat — only to restore order.”

For help in pushing back against the deployments, California
officials, like their Portland predecessors, have turned to the
courts. This time around, however, the Trump administration has
revised its reading of what is lawful and, so far, the judiciary seems
to be bending the president’s way.

THE COURTS

On June 9th, Governor Newsom filed suit in federal court, claiming
that the deployment of the Guard and the Marines violated the
Constitution and exceeded the president’s Title 10 authority. The
suit argued that the deployments were unwarranted and the
administration had failed to try to coordinate with the governor.
California Attorney General Rob Bonta elaborated
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the limitations of the law: “Let me be clear: There is no invasion.
There is no rebellion. The President is trying to manufacture chaos
and crisis on the ground for his own political ends. Federalizing the
California National Guard is an abuse of the President’s authority
under the law — and not one we take lightly. We’re asking a court
to put a stop to the unlawful, unprecedented order.”

In 2020, the Oregon attorney general had filed suit in federal court
in response to the actions of the federal agents. As the _New York
Times_ reported
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“The lawsuit said federal agents were violating the First, Fourth,
and Fifth Amendments to the Constitution by denying the right to
peacefully protest, failing to provide due process and conducting
unreasonable searches and seizures.” Ultimately, the federal judge
dismissed the case, claiming that “the attorney general’s office
did not have standing to bring the case because it had not shown that
the issue was ‘an interest that is specific to the state
itself.’” The Oregon court also shied away from tackling the
larger question of what powers the federal government actually had in
such situations.

Suits brought by private parties, as well as the American Civil
Liberties Union, on behalf of individuals (journalists in particular),
who were injured, harassed, or “abducted” by federal agents were
more successful. Initially, a judge expanded
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temporary restraining order (TRO) from local law enforcement to
federal agents, blocking the use of tear gas and projectiles against
journalists. As the suit progressed, more weapons in the federal
agents’ arsenal, including rubber bullets, were prohibited.

When the president asked for the TRO to be removed, the judge not only
refused, but levied a requirement that government agents wear
identifying insignia — an effort to introduce a measure of
accountability into the conflict on the ground.

On appeal, the Ninth Circuit Court of Appeals raised
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larger issue of federal versus local authority, resoundingly rejecting
the legality of the presence of federal agents in Portland, while
agreeing with the lower court’s finding of “a disturbing pattern
of unwarranted force by federal agents.” That court not only
reinstated the TRO against federal agents attacking journalists but
underscored the fact that federal agents had gone beyond protecting
federal buildings to actively confronting protesters, while widening
the “perimeter” in which they could act outside those buildings
and so wrongfully overstepping the authorities expressly reserved for
local law enforcement.

And at that time, there was also help from within Trump’s circle. In
a settlement arranged between Oregon Governor Kate Brown and Vice
President Mike Pence’s staff, federal law enforcement officers were
indeed replaced with members of the Oregon state police. As Nik
Blosser
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Brown’s chief of staff and one of the negotiators, pointed out
recently, referring to Vice President Pence, “There was at least
someone in the administration that knew that this violence needed to
come to an end. I’m not sure who is there to negotiate with now.”

Today, in Los Angeles, the courts are similarly engaged in a suit over
the administration’s deployment of federal agents to counter
protests. So far, however, the outcome is trending very differently.
Earlier in the month, a federal judge issued a TRO against the
National Guard in that city. In a 46-page ruling
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Judge Charles Breyer, the brother of retired Supreme Court justice
Stephen Breyer, rejected the government’s characterization of the
protests as “a rebellion” and excoriated the president for
assuming powers beyond his constitutional and statutory authority.
“That’s the difference between a constitutional government and
King George” was the way he put it. In addition, Judge Breyer
returned the authority to deploy the National Guard to California
rather than the federal government.

The administration immediately appealed. As in the Portland case, the
appellate court is once again the Ninth Circuit. On June 18th, there
was a hearing before a panel of three judges, two of them Trump
appointees and one a Biden appointee. Repeatedly, the judges seemed to
reject the notion that the law requires the active involvement of the
governor in the decision to deploy such troops, appearing to side with
the federal government lawyer, who told the judge
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and again, “Our position is this is not subject to judicial
review.” In other words, the president should have free rein to do
as he pleases.

In their ruling, the appellate judges agreed with Trump and not with
the state of California, overruling the district court judge
and unanimously agreeing
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the president had acted lawfully and that his failure to notify the
governor before deploying those troops was not grounds for obstructing
the president’s order. In other words, he could indeed keep control
of the troops in L.A.

In short, the case has taken us another step down the road to the
“maximalist” view of executive power. The ruling suggests that
last year’s Supreme Court immunity decision
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allowing a president to do more or less whatever he wants while in
office without fear of retribution, was indeed a game changer. As a
reminder, in July 2024, while Trump was running for office a third
time, the court ruled that, “under our constitutional structure of
separated powers, the nature of Presidential power entitles a former
President to absolute immunity from criminal prosecution for actions
within his conclusive and preclusive constitutional authority. And he
is entitled to at least presumptive immunity from prosecution for all
his official acts.” The court then added, “There is no immunity
for unofficial acts.”

In the context of recent events in Los Angeles, rather than immunity
for criminal activity, it suggests that the Supreme Court might indeed
support immunity from legal pushback for acts committed at the state
level. And that would, of course, remove yet another of the checks and
balances that once underlay the protections against untethered
presidential power in the American system of government.

A GENUINELY FRIGHTENING MOMENT

How this will play out at the Supreme Court the next time around is
anyone’s guess and may turn on the issue of whether that court
assesses that there really was a rebellion in Los Angeles — the
government’s premise for bringing in federal troops. Nonetheless,
this should certainly be considered a frightening moment. After all,
that presidential memorandum authorizing the federal deployments to
L.A. was in no way limited to California. In fact, there was no
geographical specificity to it at all and no specific type of protest
named in the memo. It was a blanket authorization for deploying
federal troops, based on unspecified acts of violence, disorder, and
protests. If California is a sign of the future, it seems ever clearer
that the courts have little appetite for standing in the way of this
president. In addition, as loyalty to him is the first requisite of
government officials, any pushback from within the ranks of his
administration seems essentially inconceivable.

So here we are, once again learning that the restraints Americans
could rely upon in the past are fast disappearing. And while protests
from democratic leaders abound, it’s the courts that, at this
moment, hold the power.

It’s tempting to point to the moments in recent times when we should
have seen this coming — the growing powers granted to the president
in the name of the Global War on Terror
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the unchecked ability
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the president to repeatedly make acting appointments and fire those in
his cabinet who oppose his will, the coopting of members of Congress
through threats of primarying them out of office or grants of vast
amounts of money should they demonstrate sufficient loyalty to the
president.

But as it stands, this is probably not the time to focus on who’s to
blame in the past. Instead, it’s time to consider the future and our
power to strengthen the fundamentals of our democracy before all is
lost. Only if our trust in the law and the courts is restored will we
truly be able to turn our thoughts to the mistakes and missed
opportunities of what by then would be the painful past.

_Copyright 2025 Karen J. Greenberg_

_KAREN J. GREENBERG is the former director of the Center on National
Security at Fordham Law. She is the author of Subtle Tools: The
Dismantling of American Democracy from the War on Terror to Donald
Trump
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co-editor with Julian Zelizer of Our Nation at Risk: Election
Integrity as a National Security Issue
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* executive action
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* Trump
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* dictatorship
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