For Immediate Release: October 24, 2025

Extreme, Unprecedented, and Unconstitutional: The President’s Unchecked Power to Deploy Troops Against Citizenry

PORTLAND, Ore. — Calling President Trump’s actions extreme, unprecedented and unconstitutional, a coalition of civil liberties organizations is urging the full Ninth Circuit Court of Appeals to rein in the president’s use of the military against the American citizenry, particularly as a means of silencing and punishing disfavored speech, pursuant to his June 2025 memorandum.

The amicus brief filed by the coalition—including The Rutherford Institute, the ACLU and its state affiliates, and the Knight First Amendment Institute—comes in the wake of a 2-1 ruling in Oregon v. Trump by a panel of the Ninth Circuit that grants the president sweeping discretion to deploy the National Guard in response to demonstrations at an ICE facility in Portland.

Pointing out that “no legal or factual justification supported the order to federalize and deploy the Oregon National Guard,” the dissent warned that the majority’s opinion “erodes core constitutional principles, including … the people’s First Amendment rights to assemble and to object to the government’s policies and actions,” and urged the full Ninth Circuit court “to act swiftly to vacate the majority’s order before the illegal deployment of troops under false pretenses can occur.”

“The Founders warned against standing armies on American soil, fearing that the military might be used not to defend the people, but to control them,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “When the President sends troops to police domestic unrest that local authorities can manage, he crosses a constitutional line. This is precisely the kind of activity that the Posse Comitatus Act forbids—and what authoritarian governments routinely engage in.”

Following protests at the Lindquist ICE facility in Portland, the Department of Homeland Security requested military assistance on September 26, 2025, claiming the facility had “come under a coordinated assault by violent groups… actively aligned with designated domestic terrorist organizations.” Having previously declared such protests “a form of rebellion against the authority of the Government,” President Trump ordered the Defense Secretary to deploy the National Guard under 10 U.S.C. § 12406. Despite objections by Oregon’s governor, 200 members of the Oregon National Guard were called into federal service.

In response, the State of Oregon, City of Portland, and Portland Police Bureau sued, arguing the order violated the Tenth Amendment, the Posse Comitatus Act, and the separation of powers, as Congress—not the president—is vested by the Constitution with the power to call forth the militia, except as delegated by statute in narrowly defined emergencies. The district court agreed and issued a Temporary Restraining Order barring the federal government from deploying the Oregon National Guard. The Trump Administration then deployed 100 members of the California National Guard to Portland instead, prompting a second TRO prohibiting any federalized troops in Oregon. 

On appeal, a Ninth Circuit panel stayed the TRO, finding that the federal government was likely to prevail. Other federal courts have reached different findings in separate cases. A California district court ruled that the use of troops in Los Angeles violated the Posse Comitatus Act, and the Seventh Circuit refused to lift an injunction blocking deployment in Chicago, citing insufficient evidence of rebellion or any inability to enforce the law with regular forces.

Hina Shamsi, Charlie Hogle, and others at ACLU advanced the arguments in the amicus brief.

The Rutherford Institute is a nonprofit civil liberties organization dedicated to making the government play by the rules of the Constitution. To this end, the Institute defends individuals whose constitutional rights have been threatened or violated and educates the public on a broad range of issues affecting their freedoms.

This press release is also available at www.rutherford.org.

Source: https://tinyurl.com/3mbj455c

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