At a time when Donald Trump has declared war on the truth, it was heartening to see two federal district court judges have the courage to call out Trump’s rationales for sending troops to Portland and Chicago as blatantly untrue – one of the judges said that rationale was “untethered to the facts”.
And at a time when the United States supreme court has been so craven and deferential toward Trump, it was gratifying to see that these lower court judges had the guts to do what the high court’s six conservative justices have been utterly unwilling to do: speak truth to Trump’s power.
As Trump seeks to deploy the national guard to city after city, he has peddled untruth after untruth about Portland and Chicago. In late September, he said Portland was “war-ravaged”, with Ice facilities “under siege” from “domestic terrorists”. Later he said Portland was “burning to the ground” and has “insurrectionists all over the place”. Trump likened Chicago to “a war zone” and said federal facilities in Illinois “have come under coordinated assault by violent groups”.
While legal tradition calls for judges to show considerable deference to the president, it would be foolish and dangerous for judges to give much deference to Trump’s statements, considering how spectacularly dishonest he is. Trump still maintains that the 2020 election was stolen. He has said that Ukraine began its war with Russia. He said that noise from windmills causes cancer and that the nation’s social security database lists 3.9 million people from ages 130 to 139. The Washington Post found that Trump made an outrageously high 30,573 false or misleading statements in his first four years as president.
After Trump sought to deploy national guard troops to Portland, state and city officials went to federal court to seek an emergency order to block Trump’s plans. District court judge Karin Immergut, a Trump appointee to the federal bench, wrote that judges owe “a great level of deference” to presidents, but she was nonetheless wise enough and brave enough not to swallow everything Trump said about the situation in Portland. Using courageous, clear-eyed language, Immergut wrote that “‘a great level of deference’ is not equivalent to ignoring facts on the ground”.
On 27 September, Trump sent a directive ordering Pete Hegseth, the defense secretary, to provide “all necessary Troops to protect War ravaged Portland”. In assessing the case, Judge Immergut explained that under federal law, sending in the guard would be legal only if there were a danger of invasion, rebellion or other disorder that regular law-enforcement forces couldn’t handle. Rejecting Trump’s efforts to create an alternate reality to justify using troops, Immergut wrote that there was “substantial evidence that the protests at the Portland Ice facility were not significantly violent or disruptive in the days – or even weeks – leading up to the President’s directive.”
She noted that the day before Trump issued his directive, law enforcement in Portland had “observed approximately eight to 15 people at any given time out front of Ice. Mostly sitting in lawn chairs and walking around. Energy was low, minimal activity” – far from a “war-ravaged” city with “domestic terrorists”. Immergut granted a temporary order blocking Trump’s efforts to send in the Guard, concluding that his justification for doing so “was simply untethered to the facts”.
In a slap at Trump, Immergut also wrote that his directive to Hegseth was “not ‘conceived in good faith’”. Noting that the US has a long “tradition of resistance to government overreach” and “military intrusion into civil affairs,” she warned of Trump’s assault on “this historical tradition,” which “boils down to a simple proposition: this is a nation of constitutional law, not martial law.” (On Wednesday, Immergut extended the temporary block on troops while the US court of appeals for the ninth circuit weighs lifting one of her orders.)
When Trump sought to send the national guard to Chicago, the state of Illinois and city of Chicago sued to stop him, and another courageous district court judge, April Perry, blocked Trump’s militaristic muscle-flexing. In seeking to justify the deployment, Trump asserted that Chicago was “like a war zone”, but Judge Perry found there was no evidence that order couldn’t be maintained with just regular forces, ie without the national guard.
Like Immergut, Perry was courageous and clear-eyed in calling out Trump and his administration for their lack of credibility. “I simply cannot credit [the Trump administration’s] declarations to the extent they contradict state and local law enforcement,” Perry said from the bench. “DHS’s [the Department of Homeland Security’s] perception of events are simply unreliable.”
Perry added: “I have seen no credible evidence that there is danger of rebellion in the state of Illinois … Deportations are up. Arrests are up … The courthouse remains open and always has … There is no evidence that the president is unable, with the regular forces, to execute the laws of the United States.” (On October 16, a three-judge appellate panel upheld Perry’s order, saying: “The facts do not justify the president’s actions in Illinois.” Referring to the often tense protests at Ice facilities, the panel added: “Political opposition is not rebellion.”
Everyone who believes in democracy should thank these two judges for refusing to accept Trump’s concocted rationales for deploying troops as part of his effort to show how powerful he is, to intimidate blue cities and to normalize the use of troops across the US.
If only the supreme court’s six-person conservative supermajority was as willing to stand up to Trump’s false claims. Ever since Trump returned to office, the supermajority has ruled repeatedly in his favor, often acting as if Trump is a benign, truth-telling president acting in good faith to comply with the law. The conservative justices seem blind to the reality that Trump is the most authoritarian-minded president in US hist0ry, one for whom district court judges felt the need to issue over 180 orders – an extraordinary number – blocking or temporarily pausing Trump’s actions because they deemed those actions unlawful.
It’s past time for the supreme court to be far more clear-eyed and less deferential toward Trump. In a case in which the Trump administration ordered massive Department of Education layoffs, the court unfortunately gave a green light to those layoffs, which went far to gut the department. The court seemed inexplicably blind to the facts, namely Trump’s publicly-stated desire to eliminate an agency that Congress had created.
In the upcoming case in which the court hears arguments on whether to overturn Trump’s across-the-board tariffs (which are essentially import taxes on US consumers), the court should embrace the truth and reject Trump’s absurd pretext for imposing those tariffs: that the US trade deficit constitutes a national emergency. And in a case involving deportations, the justices should laugh out of court Trump’s patently false claim that members of the Tren de Aragua gang from Venezuela constitute a “predatory incursion against the territory of the United States”.
Far too often the conservative supermajority has treated Trump like an innocent lamb as it has acceded to his power-grabs – most notably, his efforts to fire officials from independent agencies and to seize more and more of Congress’s spending powers. My advice to the supermajority: if you, with your eagerness to embrace the widely challenged unitary executive theory, want to cede more executive power to presidents, then do it under a cautious, law-abiding president such as George HW Bush or Jimmy Carter – and not under a norm-smashing egomaniac seeking to grab as much power as he can.
The Trump administration has appealed the Chicago case to the supreme court; the high court may well hear the Portland case as well. If the conservative supermajority defers to Trump, accepts his “untethered” claims about a supposed emergency situation and allows troops to be sent in, that will dangerously open the door to Trump sending troops into any and every city he wants. And that will be a very big step toward Trump bringing martial law to city after city and state after state.
Millions of us keep waiting and waiting for Chief Justice John Roberts and the five other conservative justices to do far more to preserve our seriously endangered democracy and far less to grant more power to our seriously authoritarian president.
As unflinching truth seekers and truth tellers, Judges Immergut and Perry are model jurists that the supreme court and the rest of the judiciary should follow.
Steven Greenhouse is a journalist and author, focusing on labor and the workplace, as well as economic and legal issues
